CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 mai 2011

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AUSTRIA   (Applications nos. 15710/07, 31805/07, 36230/07, 40937/07 17239/08 and 41402/08)               JUDGMENT     STRASBOURG   24 May 2011     FINAL   24/08/2011     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Elsner v. Austria , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić , President,   Anatoly Kovler,   Christos Rozakis,   Peer Lorenzen,   Elisabeth Steiner,   Khanlar Hajiyev,   George Nicolaou, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 3 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in six applications (nos. 15710/07 31805/07, 36230/07, 40937/07 17239/08 and 41402/08) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Helmut Elsner (“the applicant”), on 6 April 2007, 15 June 2007, 10 August 2007, 3 September 2007 19 March 2008 and 28 July 2008 respectively. 2.     The applicant was initially represented by Mr W. Schubert, a lawyer practising in Vienna, and subsequently by Mr A. Hollaender, a lawyer also practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 3.     The applicant alleged, in particular, that his pre-trial detention in Austria had been unlawful. 4.     On 17 December 2008, 18 December 2008 and 30 November 2009 respectively, the President of the First Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1935 and lives in Vienna. 1.     The background of the case 6.     The Bank für Arbeit und Wirtschaft AG (“Bank for Employment and Commerce”, hereafter “BAWAG”) was founded in 1922. According to its statutes, the objective of the bank was the pooling and prudent management of the financial means of the trade unions and cooperative organisations. The majority shareholder at the time was the Austrian Trades Union Federation ( Österreichischer Gewerkschaftsbund , hereafter “the ÖGB” (70%)) together with the Konsum cooperatives (30%). After the Konsum cooperatives went bankrupt in 1995, the Bayerische Landesbank , a German bank, took over their shares. From 2004 on, the ÖGB was the only shareholder. On 1 October 2005 a merger between BAWAG and P.S.K., the Austrian postal savings bank, which had been privatized some time before, created the largest retail bank in Austria. Due to what became known as “the BAWAG affair” in which high losses were incurred, BAWAG P.S.K was sold on 15 May 2007 to a consortium led by a U.S private equity firm, Cerberus Capital Management L.P. 7.     In 1995 BAWAG had gone into speculative transactions in the Caribbean which were conducted by Wolfgang Flöttl, son of the then director of the board of management, Walter Flöttl. When it had become public that Wolfgang Flöttl had been entrusted with USD   2,000,000,000 without his father seeking the formal approval of the Supervisory Board, the Caribbean investments had been abandoned, but such transactions had been started again by Walter Flöttl’s successor, Helmut Elsner, with Supervisory Board approval one year later. These investments led to a massive loss of approximately EUR 1,000,000,000, with BAWAG risking insolvency in 2000. It seems that the Bank was only saved by a financial guarantee given by the ÖGB. The losses themselves were booked into offshore accounts in the Caribbean and accounts at United States futures broker REFCO. The National Bank of Austria concluded in a report in 2000 that the transactions had not been in compliance with Austrian banking laws. 8.     Details of the above-described speculative investments became public in October 2005 when BAWAG’s former partner REFCO filed for bankruptcy in the United States. Shortly before the company went bankrupt, a personal loan of USD 410,000,000 was given to Phillip Bennett, the Chief Executive Officer of REFCO. A few days later Bennett was arrested in the USA and charged with falsifying the account books. When the extent of the exposure to the Caribbean investments became known at the end of March 2006, the Supervisory Board Chairman, Günter Weninger, and Fritz Verzetnitsch, President of the ÖGB, the majority shareholder of BAWAG, both resigned. In October 2005 Helmut Elsner’s successor, Johann Zwettler, resigned as well. 9.     Since BAWAG held about 50% of the shares in REFCO, creditors of and shareholders in REFCO who had suffered losses caused by the insolvency of the futures broker claimed compensation from BAWAG in the amount of several billions of US dollars. On 5 June 2006 BAWAG agreed to pay USD 683,000,000 in order to avoid prosecution in the USA and to settle compensation claims after having acknowledged its role in REFCO’s collapse. A financial guarantee made by the Republic of Austria stabilised the bank and made it possible to continue business. On 8 May 2006 Parliament adopted the BAWAG-PSK Security Collateral Act ( BAWAG-PSK Sicherungsgesetz ) which granted the Federal Government the possibility to take over liability in the amount of EUR   900 million ( Haftungsübernahme ), as in the meantime considerable amounts had been withdrawn from giro and savings accounts at the bank. The Act also contained the condition that the bank had to be sold to a third party. 10.     The events involving BAWAG received extensive media coverage inside and outside Austria. 11.     On 14 July 2006 the Austrian Parliament was dissolved and elections were scheduled for autumn 2006. On 1 October 2006 the elections took place and the Social Democratic Party won the majority of seats in the National Council ( Nationalrat ). Together with the Austrian People’s Party ( Österreichische Volkspartei ), which became the second-biggest group in Parliament, it formed a coalition government. The swearing in ceremony ( Angelobung ) of the new government took place on 11 January 2007. In the meantime, in its first parliamentary session on 30 October 2006 Parliament decided to set up a Parliamentary Commission of Enquiry ( Parlamentarischer Untersuchungsaussschuss ) which had the task of investigating into the efficiency of the bodies controlling and monitoring the well functioning of the capital market in Austria. In this context the events leading to the difficulties of BAWAG and the role of the Capital Market Monitoring Authority ( Finanzmarktaufsicht ) were one of the principal subject matters of the enquiry of the commission. The commission did not deliver a written report, since its activities ended prematurely on 2 July 2007, but in oral conclusions given by its president to Parliament, the necessity of a reform of the Capital Market Monitoring Authority was emphasized. 2.     The applicant’s arrest in France and his extradition to Austria 12.     In spring 2006 preliminary enquiries ( Vorerhebungen ) were instituted against the applicant on suspicion of breach of trust and fraud in aggravating circumstances in connection with his former position as director of the board of management of BAWAG. Investigations were also opened against several co-suspects. 13.     Between 7 April 2006 and August 2006 the applicant was repeatedly questioned by the Federal Office for Criminal Investigations ( Bundeskriminalamt ) and the Public Prosecutor. The applicant, who was staying in his house in Mougins (France), attended the interviews in Austria. 14.     On 1 August 2006 preliminary investigations ( Voruntersuchungen ) were opened against the applicant and several co-suspects. 15.     Further questioning of the applicant was scheduled for 23 August 2006. On 21 August 2006 in the morning the applicant felt ill in the bathroom of his house in Mougins and was taken by ambulance to a hospital specialising in heart diseases. Subsequently, through his lawyer, he informed the Public Prosecutor’s Office of these events and stated that he could not appear for questioning in Austria on 23 August 2006. 16.     The events surrounding the difficult financial situation of BAWAG and the preliminary investigations against leading managers of the bank were widely covered by the Austrian media. In issue no. 37 of the print magazine News , which came out on 14 September, an article reporting on the applicant was published, stating that the illness which he claimed had prevented him from appearing for further questioning in Vienna, had been a simple pretext for attempting to evade court proceedings in Austria. 17.     Meanwhile, on 13 September 2006, the Investigating Judge at the Vienna Regional Court, who had been made aware of the imminent publication of the above-mentioned article, issued a warrant of arrest against the applicant. According to the warrant there was a serious suspicion ( dringender Tatverdach t) against the applicant of having committed breach of trust, fraud in aggravating circumstances and offences under section 255 of the Company Act ( Aktiengestz ). He was suspected of having abused his power as director of the board of management of BAWAG when disposing of the bank’s assets and causing damage in the amount of EUR   1,700,000,000. From 1995 onwards he had concluded high-risk speculative transactions with Mr W. Flöttl, in disregard of losses accrued from previous such transactions, and had circumvented internal safeguards, deceiving the statutory organs of the bank and its employees. 18.     The Investigating Judge stated that in 2000 the applicant had deceived other members of the board of directors and members of the supervisory board ( Aufsichtsrat ) by concealing from them that in the same year losses of EUR 430,000,000 had accrued. By deceiving them as to the actual financial situation of the bank he had induced them to agree to a lump sum settling of his own and his wife’s pension claims against BAWAG as an employee of that company. On 24 November 2000 he had received a payment of 93,958,797 Austrian Schillings (ATS), causing a financial loss to BAWAG of the same amount. By employing the same means he had obtained a premium payment in the amount of ATS 8,000,000. Further, he had made BAWAG sell him a penthouse apartment in a prestigious building owned by the bank at a price far below the market value. 19.     Moreover, the balance sheets of BAWAG and its affiliated companies ( Tochtergesellschaften ) were incorrect and dissimulated its real financial situation. There were significant omissions; for example, the balance sheets did not report the above-mentioned losses resulting from high-risk transactions, and by using complex constructions avoided admitting the need for depreciation ( Abschreibungsbedarf ) in the amount of EUR   350,000,000 and continued to treat the losses as outstanding money. 20.     The suspicion against the applicant was based on investigations by the Federal Ministry of the Interior ( Bundesministerium für Inneres ), the Federal Office of Criminal Investigations and the Capital Market Monitoring Authority, enquiries by the National Bank ( Nationalbank ), material obtained at house searches and various statements by witnesses which had incriminated the applicant. The Investigating judge referred, inter alia , to a detailed report by the Capital Market Monitoring Authority according to which he had initiated large-scale investments in risky speculations in breach of the relevant provisions of law. From the transcripts of meetings of the board of directors and the supervisory board it appeared that he had obtained the consent of its members by concealing the risks incurred, and providing false information as to guarantees given and other circumstances. 21.     The Investigating Judge based the warrant of arrest on the risk of the applicant absconding under section 175 §1 (2) of the Code of Criminal Procedure. Such a risk was considered to exist because although the applicant had attended interviews by the authorities in the past, he had not shown up for the last one. According to the accounts of his defence lawyer he suffered from a heart disease, had to stay at home and could only leave his house for medical consultations. Because of his ill health he had to cut short conversations and telephone calls frequently and would not be at the court’s disposal for about a month. This account of the defence was, however, in striking contradiction ( eklatantem Widerspruch ) to statements by two witnesses, who had given a different account of the applicant’s conduct. They had stated in particular that they had seen the applicant driving his car and, at the same time, using his mobile phone. Further, the medical certificates submitted by the defence appeared rather neutral in that the doctors recommended that the applicant not leave “the region”. On the basis of the witnesses’ statements and the medical certificates there was no good reason to doubt that the applicant had attempted to evade justice. Since the information on his conduct, in contrast to the alleged state of health of the applicant, would become public on 14 September 2006 through the publication of an article in the print magazine News , it would also become clear to the applicant that this would cause the Austrian authorities to react, thus increasing the risk of him absconding. 22.     On the basis of that warrant of arrest the applicant was arrested by the French police on 14 September 2006. 23.     On 15 September 2006 the Senior Public Prosecutor at the Aix-en-Provence Appeal Court ( Cour d’appel ) asked for an order remanding the applicant in custody pending extradition. 24.     On 29 September 2006 the investigation chamber ( Chambre de l’instruction ) at the Aix-en-Provence Appeal Court ordered the applicant’s release on bail in the amount of EUR 1,000,000 on the condition that he remain on French territory and hand over his passport. It further decided to grant the request for extradition in principle but considered that before handing the applicant over to the Austrian authorities a further medical report should be obtained. 25.     On 19 October 2006 the investigation chamber found that there were no reasons to delay the implementation of the extradition request. The applicant appealed against that decision. 26.     On 28 November 2006 the Court of Cassation ( Cour de cassation ) dismissed the appeal. 27.     On 29 November 2006 the applicant was admitted to the cardiology department of Marseille University Hospital. 28.     On 30 November 2006 the applicant requested the investigation chamber to stay the implementation of the extradition order because of his bad health. According to a medical report the applicant was suffering from angina pectoris. 29.     On 13 December 2006 the investigation chamber provisionally stayed the implementation of the extradition order. 30.     Since the applicant’s health had deteriorated, a bypass operation was scheduled for February 2007. On 13 February 2007, however, as a result of close co-operation between the French and the Austrian authorities, the applicant was declared fit to travel and was immediately transported by a specially equipped airplane from the hospital in France to Vienna, where he arrived on the evening of the same day. 3.     The applicant’s detention on remand in Austria 31.     After the applicant’s arrival in Vienna on 13 February 2007 he was formally arrested by the Austrian police on the basis of the warrant of arrest of 13 September 2006. 32.     On 14 February the competent investigating judge at the Vienna Regional Court ordered the applicant’s detention on remand. She noted that the applicant had not attended the interview scheduled for 23 August   2006 at the Vienna Federal Criminal Investigation Office ( Bundeskriminalamt ) and had been excused at short notice by his defence counsel, who had stated that the applicant had had a very serious heart attack, was in need of permanent medical care and not fit to travel. These claims were in contrast to the applicant’s conduct before and during the extradition proceedings. In this connection the investigating judge referred to the same arguments relied on by the Regional Court 24 January 2007. The investigating judge concluded that in view of these circumstances, it was necessary to keep the applicant in custody pending trial. The applicant filed a complaint against that decision. 33.     While in detention the applicant was transferred to the cardio surgery department of the General Hospital in Vienna ( Allgemeines Krankenhaus ) where, on 21 February 2007, a triple bypass operation was carried out on him. On 2 April 2007, while still officially in detention on remand, the applicant was transferred to a rehabilitation centre. 4.     Appeal proceedings against the warrant of arrest of 13 September 2006 34.     Meanwhile, on 22 September 2006, the applicant had filed a complaint ( Beschwerde ) against the warrant of arrest. He submitted that the warrant of arrest was unlawful because there was neither a serious suspicion against him, nor a risk of him absconding (section 175 § 1 (2) of the Code of Criminal Procedure). He had never gone into hiding and, with one exception, had complied with all summonses for questioning by the Austrian authorities. The one exception, his failure to appear for questioning on 23 August 2006, had been caused by his bad health, which had been proven by medical certificates. The warrant had merely been based on the article published in News on 14 September 2006 and the statements of the journalists, which were dubious. Furthermore, he was well integrated in Austria, had relatives and real estate there and his domicile in Vienna. 35.     On 17 October 2006 the Court of Appeal dismissed the complaint. It found that there was a serious suspicion against the applicant of having committed offences including fraud and breach of trust and referred to the results of the criminal investigations, to which the Investigating Judge had also referred in the warrant of arrest. 36.     As regards the risk of absconding, the Court of Appeal observed that the risk had to be assessed on the basis of specific facts and the particular circumstances of the case at hand. In this respect it noted that the applicant had earned a high salary and received other payments before his retirement. In the course of the preliminary investigations some of the accounts held by the applicant or by foundations created by him had been frozen, but, even allowing for a particularly comfortable lifestyle, it was highly probable that the applicant still possessed financial means which would be sufficient for absconding and starting a new life elsewhere. In view of the particularly high amount of supposed damage, approximately more than one billion euros, and the various offences the applicant was accused of, he risked a term of imprisonment of up to ten years in the event of conviction. This was certain to be seen as a particularly severe sanction by a person in the applicant’s position. 37.     Moreover, the applicant had already taken steps to evade justice in Austria. The Court of Appeal referred to the failure of the applicant to appear for questioning on 23 August 2006 and the description of the serious state of the applicant’s health, which was in contradiction to the detailed statements made by the two journalists who had written the article in the print magazine News on 14 September 2006. After his arrest by the French police the applicant had not been admitted to hospital because of a serious heart attack, but in order to avoid any potential damage to his health. The applicant was released shortly afterwards and only a couple of days later had entered a private clinic. There were no medical reports which, on the basis of a detailed diagnosis, proved that treatment in a hospital was indispensable. 38.     Taking all these elements into account, it was considered that there was a risk of the applicant absconding. 39.     On 8 November 2006 the applicant filed a “fundamental rights complaint” ( Grundrechtsbeschwerde ) with the Supreme Court. He submitted that the warrant of arrest issued against him had infringed his right to liberty and reiterated that there was no serious suspicion against him or a risk that he might abscond. He disputed in particular the assumptions that he had access to financial means besides the accounts which had been frozen and that his medical condition was not particularly serious. 40.     On 6 December 2006 the Procurator General’s Office ( General-prokuratur ) filed observations on the applicant’s fundamental rights complaint in which it asked the Supreme Court to dismiss the complaint. While the office accepted that the complaint was admissible, since the warrant of arrest had been one of the elements which had led to the applicant’s arrest in France even though he had been released in the meantime, it was unfounded. 41.     On 18 December 2006 the applicant replied to the Procurator General’s Office’s submissions. 42.     On 18 December 2006 the Supreme Court dismissed the fundamental rights complaint. The Supreme Court agreed with the Procurator General’s Office that the complaint was admissible. As regards the merits of the complaint, it observed that there was a serious suspicion against the applicant and there was also a risk that he might abscond. It was possible that the applicant had sufficient financial means at his disposal because, on the basis of the file, he had received considerable payments in the past, only a part of which were in the accounts which had been frozen. The Supreme Court agreed with the Court of Appeal that there were other factors indicating a risk of the applicant absconding. The Supreme Court found that the steps taken by the doctors treating the applicant in France had been intended as preventive measures ( vorbeugende Massnahme ). The reference to the statement of the journalists had merely been a supplementary indication, but not a decisive element. It was therefore not relevant that on 24 October 2006 their statements had been shown to be untrue. Since the Supreme Court had to examine the impugned decision on the basis of the elements known to the Court of Appeal on 17 October 2006, those developments and others, such as medical reports obtained after that date, could not be taken into account. The Court of Appeal had correctly applied the relevant provisions because a risk of absconding was also considered to exist when a suspect whose place of residence was known had tried to evade justice by deliberately delaying extradition to Austria. 5.     The Supreme Court’s decision of 13 February 2007 on a fundamental rights complaint by the applicant 43.     On 21 September 2006, while extradition proceedings were pending against him in France, the applicant filed a request for the lifting of the warrant of arrest with the Regional Court. 44.     On 28 September 2006 the Regional Court dismissed this request. It observed, inter alia , that a risk of the applicant absconding existed as he had not turned up for questioning in Vienna on 23 August 2006 and had argued that a severe illness had prevented him from attending, while witnesses had observed him in situations in France which were not compatible with his alleged serious state of health. This being so, there was no doubt that the applicant had tried to evade justice in Austria. 45.     On 12 October 2006 the applicant filed a complaint against the Regional Court’s decision of 28 September 2006. He argued in particular that the statements of the witnesses who had allegedly seen him driving a car were untrue and that his state of health was serious, a fact which had been confirmed by recent examinations by specialists. 46.     On 6 November 2006 the Court of Appeal dismissed the applicant’s complaint of 12 October 2006 and referred at length to a previous decision of 17 October 2006 (see paragraph 35 above). It added that the risk of absconding had actually increased in the meantime, because on 23 October 2006 the Public Prosecutor’s Office had filed a bill of indictment against the applicant and, on the basis of this indictment, he risked a lengthy term of imprisonment. The fact that he was at present staying in another member state of the European Union did not remove the risk of him absconding, since the fact that he was outside the jurisdiction of the Austrian authorities rendered in any event his prosecution by the Austrian authorities more difficult. 47.     On 6 December 2006 the applicant filed a fundamental rights complaint against the Court of Appeal’s decision of 6 November 2006. He stressed that there was no risk of him absconding because the seriousness of his medical condition had meanwhile been confirmed by several specialists who had examined him in France. These reports had led the Senior Public Prosecutor at the Aix-en-Provence Appeal Court to ask that court to suspend the applicant’s extradition. These facts were, however, disregarded by the Court of Appeal. 48.     On 13 February 2007 the Supreme Court dismissed the applicant’s fundamental rights complaint against the Court of Appeal’s decision of 6   November 2006. The Supreme Court found that the applicant had essentially repeated the arguments he had made in his previous fundamental rights complaint of 8 November 2006, which had been answered by the court in its decision of 21 December 2006. In addition, the Supreme Court found that the Court of Appeal had sufficiently dealt with the medical reports submitted in the extradition proceedings. The mere fact that the applicant had derived different conclusions from them did not render the assessment by the Court of Appeal arbitrary. 6.     The Supreme Court’s decision of 28 March 2007 on a fundamental rights complaint by the applicant 49.     On 7 December 2006 the applicant filed another request for the warrant of arrest issued against him to be lifted. He maintained that no serious suspicion of his having committed a criminal offence existed and that there was no risk of him absconding. Because of his serious medical condition, which had been sufficiently clarified by various medical reports, such a risk had to be excluded. Moreover, as long as he had been fit to do so he had voluntarily cooperated with the Austrian judicial authorities. 50.     On 13 December 2006 the Vienna Regional Court dismissed the request. The Regional Court observed that the bill of indictment against the applicant had been drawn up in the meantime, on 23 October 2006, and the suspicion against him had therefore grown. As regards the risk of absconding, it referred to statements by witnesses who had seen the applicant after he had refused to attend an interview in Vienna on 23   August 2006, and who had seen him behaving in a way which did not correspond to his allegedly serious medical condition. In addition, the medical reports showed that the applicant was suffering from a heart condition but not to an extent which would make absconding impossible. 51.     On 21 December 2006 the applicant appealed against the Regional Court’s decision of 13 December 2006. 52.     On 26 January 2007 the Court of Appeal dismissed the applicant’s appeal, quoting at length its previous decisions of 17 October 2006 (see paragraph 35 above) and 6 November 2006 (see paragraph 46 above). 53.     On 22 February 2007 the applicant filed a fundamental rights complaint against the Court of Appeal’s decision of 26 January 2007. 54.     On 28 March 2007 the Supreme Court rejected the applicant’s fundamental rights complaint as inadmissible. It found that under the relevant act it was an essential condition for filing a fundamental rights complaint that detention of the person lodging the complaint had actually been ordered by a criminal court. No complaint could be raised by a person already released. In the present case the applicant had already been released by the French courts at the time the court of second instance gave its decision and since the warrant of arrest was no longer being enforced by detention, he could not file a fundamental rights complaint. 7.     The Supreme Court’s decision of 29 May 2007 on a fundamental rights complaint by the applicant 55.     On 22 December 2006 the applicant requested again the Vienna Regional Court to lift the warrant of arrest issued against him on 13   September 2006. He submitted that on 30 November 2006 the Senior Public Prosecutor at the Aix-en-Provence Appeal Court had applied to the Appeal Court to have the applicant’s extradition postponed because he was not fit to travel. On 13 December 2006 the investigation chamber at the Appeal Court granted the Senior Public Prosecutor’s request and decided to stay the enforcement of the extradition order. In such circumstances the warrant of arrest was no longer justified. 56.     On 24 January 2007 the Regional Court dismissed the applicant’s request for release of 22 December 2006 as it was not persuaded by the applicant’s argument that he was not fit to travel because he suffered from a serious heart condition. It found that shortly after a supposed heart attack, on 21 August 2006, the applicant had returned to his house instead of staying at the hospital. On 4 October 2006 he had been capable of returning to his house from a clinic in Marseille and, according to a statement by witness FH, taken on 24 October 2006, the latter had seen the applicant driving his car on 21 October 2006. Moreover the transfer of the applicant to a cardiology department at a hospital following his arrest in France had only been ordered as a preventive measure. Also, the medical reports obtained by the French courts only referred to coronary insufficiency and occasional cardiac disrhytmia but denied that there had been a myocardial infarct or that there was a risk of ischaemia. According to these reports the pain the applicant complained of probably had other, possibly psychological, causes, and his transport from France to Austria would be compatible with his state of health. These findings were not affected by statements by medical surgeons appointed by the applicant as these were also in contradiction to the findings of the official court-appointed expert. Moreover, in its decision of 29 September 2006 the Aix-en-Provence Appeal Court, when ordering release on bail, had not denied that there was a risk of the applicant absconding. The decision of the Aix-en-Provence Appeal Court of 13 December 2006 to postpone the applicant’s extradition could not be interpreted as a finding that the applicant was not fit to travel, but merely meant that for medical reasons the enforcement of the extradition order was postponed. The conclusion drawn by the applicant that since he was not fit to travel he could not abscond was not logical, as there was a difference between the authorities taking responsibility for and running the risk associated with his transport and he himself taking a possible medical risk in his own interest. 57.     On 8 February 2007 the applicant appealed against this decision to the Court of Appeal. 58.     On 16 February 2007 the applicant requested release from detention. He submitted that the medical reports obtained hitherto showed the seriousness of his heart condition and that the reports of two journalists, who had alleged in an article to have seen him driving a car, were untrue. 59.     On 20 February 2007 the Vienna Regional Court dismissed the request for release. It found that the risk of the applicant absconding persisted and endorsed the reasons given by the investigating judge. It added that the applicant had used his precarious state of health as a means to evade justice in Austria. According to a report by medical expert GS of 19   February 2007, the applicant suffered from coronary heart disease, angina pectoris and hypertension and normocardial atrial fibrillation. The treatment prescribed was medicamentous and in addition a quick and as complete as possible regeneration of his blood flow was recommended. That report concluded that at the time of his transport to Austria, the applicant had been fit to travel and be questioned. 60.     On 21 February 2007 a triple bypass heart operation was carried out on the applicant. 61.     On 23 February 2007 the applicant filed a complaint against the Regional Court’s decision of 20 February 2007. He submitted that from the medical reports in the file it must have been clear that his heart condition had been serious from the outset. In his report of 19 February 2007 doctor KH had confirmed that his arterial constriction of approximately 90% had made a bypass operation indispensable. In view of this medical data, the argument that there was a risk of him absconding had to be discounted. 62.     On 5 March 2007 the Vienna Court of Appeal dismissed the applicant’s complaints of 8 February 2007 (against the Regional Court’s decision of 24 January 2007), 23 February 2007 (against the Regional Court’s decision of 20 February 2007) and of 1 March 2007 (against the Regional Court’s decision of 14 February 2007 on ordering detention on remand). The Court of Appeal also decided that the applicant’s detention could be extended until 5 May 2007. In the same decision the Court of Appeal dismissed objections by the applicant and some of his co-accused against the bill of indictment. 63.     As regards the applicant’s complaint against the Regional Court’s decision of 20 February 2007 on his detention on remand, the Court of Appeal found that the reasons provided in support of the finding that there was a risk of the applicant absconding, as set out in its previous decisions of 6   November 2006 and 26 January 2007, were still valid. There were reasons to assume that the applicant had substantial financial means besides the funds in his frozen accounts and he had made steps to evade justice in Austria, as was clear from his previous conduct. On the days of court hearings in France he had regularly entered the hospital but always left soon after, which showed that his real intention had been to hinder his extradition to Austria. This was also confirmed by the medical report of doctor GS, according to which the applicant’s state of health had been stable, notwithstanding the necessity of a bypass operation, and that he had been fit to travel and that he could have attended court hearings. Moreover the court noted that the applicant’s transport to Austria by airplane had gone smoothly and that it had not been necessary to use the medical equipment on board. Those considerations, together with those already mentioned in the previous decisions, and the fact that the bill of indictment against the applicant had meanwhile become final, confirmed that a risk of him absconding existed. It was true that, on 21 February 2007, a bypass operation on the applicant had been carried out and that as a result his mobility had been reduced, but only for the very short period of approximately two weeks. 64.     On 19 March 2007 the applicant filed a fundamental rights complaint ( Grundrechtsbeschwerde )against the Court of Appeal’s decision. 65.     On 29 May 2007 the Supreme Court dismissed the fundamental rights complaint against the Court of Appeal’s decision of 5 March 2007. The Supreme Court observed first that its task in reviewing a decision on the existence of a risk of absconding consisted essentially in examining whether the existence of such a risk could, in an non-arbitrary manner, be deduced from the facts on which the decision was based. The Court of Appeal’s decision could not be considered irrational or arbitrary. That court had based its decision on three essential facts, namely, that the applicant risked a particularly high sentence if convicted, that not all of his financial means were in his frozen accounts and that he had known links abroad. These elements themselves indicated a particularly high risk of his absconding. The fact that the applicant had actually taken concrete steps to evade justice in Austria by pretending that he was not fit to travel although this had not been true, at least for a certain period, were only additional considerations which had been confirmed by the statements of doctor GS, a court-appointed expert. A risk of absconding existed if a suspect, by whatever means, attempted to hinder criminal proceedings in Austria or to delay them. The question of whether events which occurred after the impugned decision had been taken might require the report of the expert doctor GS to be supplemented could be left open, because they only concerned one element among those which had already provided a sound basis for the decision. 66.     From 2 April 2007 until 7 May 2007 the applicant, while officially in detention on remand, stayed at the Althofen rehabilitation centre. On 7   May 2007 he was moved to Wien-Josefstadt prison. 8.     The Supreme Court’s decision of 27 June 2007 on a fundamental rights complaint by the applicant 67.     On 14 March 2007 the applicant filed a new request for release from detention. He submitted that all the experts who had examined him in France and later in Austria – with the exception of one – had agreed that his heart condition was serious and that a coronary bypass operation was indispensable. That opinion had been shared by the director of the hospital in the Vienna detention centre who had ordered the transfer of the applicant to a public hospital for urgent medical treatment. At that hospital he had undergone an urgent triple bypass operation on 21 February 2007. Since it had now been objectively proven that the applicant had never pretended to be ill but had, from the very beginning, suffered from a serious heart disease, there was no longer any basis for the presumption that he might abscond and thus detaining him. 68.     On 19 March 2007 the Regional Court refused to release the applicant and in the same decision ordered that his detention continue until 19   May 2007. As regards the existence of a serious suspicion against him, the court referred to the charges against the applicant as described in detail in the bill of indictment of 23 October 2006, which had meanwhile become final. It also referred to the contents of the Court of Appeal’s decision of 5   March 2007 on the applicant’s detention. As regards the heart disease which, in the applicant’s view, would prevent him from fleeing, the Regional Court referred to the report by the court appointed medical expert doctor GS, according to which a risk of the applicant absconding could not be excluded by his state of health. The Regional Court was still persuaded that the applicant had used his heart disease, which undoubtedly existed, as a pretext in order to avoid standing trial in Austria. The Regional Court also found that other factors, which had already been discussed in detail in the court’s previous decisions, confirmed the existence of a risk of the applicant absconding. 69.     On 22 March 2007 the applicant lodged an appeal against the Regional Court’s decision of 19 March 2007 with Court of Appeal. 70.     On 25 April 2007 the Court of Appeal dismissed the applicant’s appeal. In the same decision it extended his detention until 25 June 2007. As to the existence of a serious suspicion against him and the reasons for finding that there was a risk of him absconding, the Court of Appeal referred to its previous decisions on appeals brought by the applicant and quoted extensively from them. 71.     On 18 May 2007 the applicant filed a fundamental rights complaint with the Supreme Court against the Court of Appeal’s decision of 25 April 2007. 72.     On 27 June 2007 the Supreme Court dismissed the fundamental rights complaint. Referring to the findings in its four previous decisions on complaints by the applicant, the Supreme Court found that the Court of Appeal had based its decision on facts which it had argued logically and coherently and from which it could deduct without any arbitrariness the existence of a risk of the applicant absconding. This decision was served on the applicant’s lawyer on 16 July 2007. 9.     The Supreme Court’s decision of 28 August 2007 on a fundamental rights complaint by the applicant 73.     On 5 June 2007 the applicant filed a further request for release with the Regional Court, submitting that there were no specific reasons which would justify detention on remand and that he should be released on bail. Further medical certificates dated 30 May 2007 and 4 June 2007, which he had obtained in the meantime, showed that he had not been fit for questioning on 23 August 2006 or since that date. Accordingly, his detention on remand was not justified. 74.     On 8 June 2007 the Regional Court held a hearing on review of the applicant’s detention on remand ( Haftprüfungsverhandlung ). It decided that the applicant’s detention should continue and that the decision would be valid until 8 August 2007. As regards the existence of a serious suspicion against him and the risk of him absconding, the Regional Court referred to the detailed findings in the decision of the Court of Appeal of 5 March 2007 and 19 March 2007. The court still based its findings regarding the applicant’s state of health on the report of the court-appointed expert doctor GS, who had concluded that the applicant had been fit to travel at the time of his extradition. 75.     On 11 June 2007 the applicant filed an appeal against the Regional Court’s decision of 8 June 2007. 76.     On 5 July 2007 the Court of Appeal dismissed the applicant’s appeal and extended the validity of the detention order until 5 September 2007. It found that, as explained in detail in its previous decisions, a serious suspicion of the applicant having committed criminal offences existed. Further, it confirmed that there was a risk of him absconding. As regards the applicant’s argument that he had no further means besides the funds in his frozen accounts, it noted that a further investment hitherto unknown had meanwhile been discovered, which cast doubt on the veracity of that contention. Taking all those circumstances into account, the Court of Appeal considered that the real reason the applicant had delayed his extradition to Austria was not anxiousness about his health, but an attempt to evade justice in Austria. 77. &#