CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 26 avril 1988

.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 }  The Committee of Ministers, under the terms of Article 54 (art. 54) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the convention"),   Having regard to the judgment of the European Court of Human Rights in the Can case, delivered on 30 September 1985 and transmitted the same day to the Committee of Ministers;   Recalling that the case originated in an application against the Republic of Austria lodged with the European Commission of Human Rights on 14 April 1981 under Article 25 (art. 25) of the convention by Mr Elvan Can, a Turkish national, who complained of the duration of his detention on remand and of the initial supervision of his consultations with his lawyer;   Recalling that the Commission declared the application admissible on 14 December 1983 and in its report adopted on 12 July 1984 expressed the opinion, unanimously, that there had been a violation of Article 6, paragraph 3, sub-paragraph c (art. 6-3-c), of the convention by reason of the refusal to allow the applicant unsupervised personal contacts with his lawyer, and, by eleven votes to one, that the applicant's continued detention on remand constituted a violation of Article 5, paragraph 3 (art. 5-3), of the convention;   Recalling that the case was brought before the Court by the Commission on 15 October 1984;   Whereas in its judgment of 30 September 1985 the Court, having taken formal note of a friendly settlement reached by the Government of Austria and the applicant and having satisfied itself that there were no reasons of public policy (ordre public) of a kind which would necessitate the continuation of the proceedings, decided unanimously to strike the case out of its list;   Whereas under the above-mentioned friendly settlement it was inter alia agreed that:   -     the applicant would receive lump-sum compensation of 154 336,62 Austrian Schillings, 54 336,62 Austrian Schillings thereof being intended to cover costs and expenses incurred in the domestic proceedings;   -     the Government would reimburse the applicant for any scale fees which he might have to pay in Austria for the friendly settlement, as well as for his costs and expenses in the proceedings before the European Court of Human Rights and in the negotiations leading to the friendly settlement if they were not paid under the legal-aid scheme;   -     the Government would propose to the legislative assemblies new rules on the supervision of consultations between a suspect in detention on remand and his lawyer when there is a danger of suppression of evidence (Article 45, paragraph 3, of the Code of Criminal Procedure) and, when so doing, would take account of the observations of the Commission in its report of 12 July 1984;   Recalling that Rule 48, paragraph 3, of the Court's Rules provides that the striking out of a case shall be effected by means of a judgment which the President shall forward to the Committee of Ministers in order to allow it to supervise, in accordance with Article 54 (art. 54) of the convention, the execution of any undertakings which may have been attached to the discontinuance or solution of the matter;   Having invited the Government of Austria to inform it of the measures taken for the execution of the undertakings attached to the solution of the case;   Whereas, during the examination of the case by the Committee of Ministers, the Government of Austria gave the Committee information about the measures taken, which information appears in the appendix to this resolution;   Having satisfied itself that the Government of Austria has paid the applicant the sums provided for in the friendly settlement,   Declares, after having taken note of the information supplied by the Government of Austria, that it has exercised its functions under Article 54 (art. 54) of the convention in this case.   Appendix to Resolution DH (88) 5   Information provided by the Government of Austria during the examination of the Can case by the Committee of Ministers   1.       The Austrian Government has paid the applicant the sums provided for in the friendly settlement.   2.       Article 45, paragraph 3, of the Code of Criminal Procedure has been amended by the Penal Law Reform Act (Strafrechtsänderungsgesetz) of 25 November 1987; this Act entered into force on 1 March 1988.   The new legislation takes account of the opinion expressed by the European Commission of Human Rights in its report of 12 July 1984 concerning the Can case.   In comparison with the previous position, the supervision of conversations between, on the one hand, a person in detention because of danger of collusion and, on the other hand, his defence counsel is no longer obligatory.   Article 45, paragraph 3, as amended, gives the investigating judge a discretionary power in this regard and at the same time restricts the possibility of supervision to exceptional cases.   Prior to communication of the indictment, supervision of the detained person's conversations with his defence counsel may take place:   -        during the first fourteen days of judicial detention; however, such supervision shall not take place if a risk of collusion as a result of the conversations can be ruled out;   -        after the first fourteen days of judicial detention, if there are special circumstances which give grounds to fear that a conversation without supervision might lead to collusion; the investigating judge's decision in this regard must be reasoned and the detained person can lodge an appeal against such a decision.