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. 22439/93                       by Franz Johann WEIXELBRAUN                       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                  K. HERNDL              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 17 December 1992 by Franz Johann WEIXELBRAUN against Austria and registered on 11 August 1993 under file No. 22439/93;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 24 September 1994 and the observations in reply submitted by the applicant on 26 December 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen, born in 1951, who resides in Wörgl (Austria).   Before the Commission, he is represented by Mr. H. Fuchs, a lawyer practising in Innsbruck.   A.    Particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        On 4 February 1989 the Austrian police was informed via Interpol that on 30 January 1989 in Poquoson (Virginia, USA) E.P., a German citizen, and H.S., an Austrian citizen, were killed and that the applicant, who at that time lived in Virgina, was suspected of having killed them.   A warrant of arrest was issued against the applicant in the United States.        On 5 February 1989 the applicant, who in the meantime had returned from the United States, appeared at the Wörgl police station and gave himself up to the police.   On the same day he was arrested.        On 7 February 1989 the Investigating Judge of the Innsbruck Regional Court (Landesgericht) questioned the applicant as suspect and ordered his detention on remand for suspicion of having committed murder. The Investigating Judge found that there were no facts which would exclude the existence of grounds for detention.   The applicant appealed against this decision, but on 5 April 1989 the applicant's lawyer withdrew the appeal lodged by the applicant.        On 14, 20 and 22 February 1989 the Austrian police submitted reports on their investigations to the Investigating Judge.   On 9 March, 9 May and 26 May 1989 the Investigating Judge received reports from the United States authorities on their investigations.        On 7 April 1989 the Kufstein District Court ordered that a previous judgment sentencing the applicant to 45 days' imprisonment be enforced.   On 10 May 1989 the Innsbruck Regional Court ordered that also a previous judgment sentencing him to four months' imprisonment be enforced.   Upon the Innsbruck Regional Court's order the applicant was taken into ordinary detention after conviction (ordentlicher Strafvollzug) on 17 May 1989 until 6 June 1989.   His detention on remand from 6 February onwards was counted towards this sentence. On 6 June 1989 he was again taken into detention on remand.   On 16 June 1989 he was taken into detention after conviction following the order of the Kufstein Regional Court.   This detention lasted until 31 July 1989.   On that day he was taken again into detention on remand.   The applicant did not appeal against the orders by which he had been taken into ordinary detention after conviction.   He also waived his right to appeal against the orders by which he had been taken into detention on remand.        On 31 July 1989 the United States authorities transmitted further reports to the Investigating Judge.        On 14 September and 12 December 1989 the Investigating Judge requested the United States authorities by letters rogatory to hear several witnesses.        On 20 February 1990 the Austrian Embassy in the United States urged the US authorities to act upon the letters rogatory.        On 18 May 1990, 6 June and 1 July 1990 the United States authorities transmitted reports on the hearing of the witnesses requested and sent items of evidence.        On 25 June 1990 the public prosecutor filed an indictment against the applicant charging him with murder on two counts and aggravated robbery.        On 24 July 1990 the Innsbruck Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal (Einspruch) against the bill of indictment and extended the applicant's detention on remand to a maximum duration of 18 months.   The Court of Appeal found that, based on the investigations undertaken and in particular the statements of W.T. and B.W., a serious suspicion existed against the applicant and that there were no facts which would exclude reasons for detention. The extension of the maximum duration of the applicant's detention on remand was necessary as the investigations were complex and necessitated the hearing of numerous witnesses from abroad.        On 31 October 1990 the Presiding Judge of the Court of Assizes (Geschwornengericht) scheduled the date of the beginning of the trial against the applicant for 11 December 1990.   On 2 November 1990 he summoned several witnesses living in the United States by letters rogatory.        On 11 December 1990 the trial (Hauptverhandlung) against the applicant commenced before a Court of Assizes of the Innsbruck Regional Court sitting with a jury.        On 13 December 1990 W.T., an Austrian citizen, who was the former employer of the applicant in Virginia (USA) and against whom criminal proceedings had been instituted in Austria for suspicion of having aided the applicant after the fact (Begünstigung) was heard as witness. The Court of Assizes found that this witness made contradictory statements, which raised the suspicion that he had aided and abetted the applicant in committing murder.   W.T. was arrested in court, the trial adjourned and the file remitted to the Investigating Judge for further investigations.        On 8 January 1991 the Court of Appeal extended the applicant's detention on remand to a maximum duration of two years.        On 22, 25 and 26 February, 25 March and 4 April 1991 the Investigating Judge heard further witnesses.   On 4 April 1991 he requested the hearing of witnesses living in the United States by letters rogatory.        On 10 and 11 July 1991 the Norfolk Court in Virginia (USA), acting on letters rogatory, heard witnesses requested by the defence.        Between 8 and 15 July 1991 Austrian police officers carried out further investigations in the United States.        On 16 July 1991 the trial against the applicant was resumed before the Court of Assizes.   Court hearings took place on 16, 17, 18 July, 8, 9, 13, 14 August, 13 September, 11, 14, 15 and 16 October 1991.        Outside the court hearings a private investigator employed by the applicant's lawyer was heard as witness by the bench of the Court of Assizes in the presence of the prosecution and the defence on 19 July 1991 and a former colleague at work of the applicant was heard as witness on 3 October 1991 by the Harrisonburg Court in Virginia, acting on letters rogatory.        On 16 October 1991 the jury delivered a verdict of not guilty. The bench of the Court of Assizes, by unanimous vote, set aside the jury's verdict for error.        On 20 November 1991 the Supreme Court (Oberster Gerichtshof) decided that a new trial should take place against the applicant before another Court of Assizes at the Innsbruck Regional Court.        On 21 November 1991 the applicant requested his release from detention on remand. He submitted that on the basis of the jury's verdict it could no longer be argued that there was a serious suspicion against him.   Furthermore there was no risk of his absconding because the United States authorities had issued an international warrant of arrest against him and if he left Austria he would risk extradition to the United States.   Furthermore, as the victims were German citizens he would also risk being arrested in Germany.   Having regard to the length of the criminal proceedings against him there was no longer any risk of collusion.   Regard should also be had to his private situation. He was married, had a child and his family was living in Austria.        On 4 December 1991 the Judges' Chamber (Ratskammer) of Innsbruck Regional Court dismissed this request.   It found that a serious suspicion continued to exist, as shown by the decision of the bench of the Court of Assizes to set aside the verdict of the jury.   In view of the heavy penalty he risked , his prolonged sojourns abroad and his criminal record, the danger of absconding could not be excluded.        On 19 December 1991 the applicant appealed against the Judges' Chamber decision.        On 14 January 1992   the Court of Appeal dismissed his appeal.        On 17 January 1992 the Regional Court decided to join the proceedings against the applicant and W.T.        On 4 March 1992 the new trial against the applicant and W.T. commenced before another Court of Assizes of the Innsbruck Regional Court and lasted until 18 May 1992.   Court hearings were held on 11, 12, 13, 18, 19, 20, 25 and 27 March, 10, 13, 17, 23 and 28 April 1992. On 30 March 1992 the Presiding Judge of the Court of Assizes requested the Innsbruck police to conduct supplementary investigations in the United States.   The result of these investigations were transmitted to the Court of Assizes on 8 April and 7 May 1992.        On 20 May 1992 a further witness was heard in Norfolk, Virgina (USA) in the presence of the Presiding Judge of the Court of Assizes, the prosecution and the defence.        Between 10 to 17 June 1992 further hearings were held by the Court of Assizes in the trial against the applicant and W.T.        On 17 June 1992 the Court of Assizes acquitted the applicant. On the same day he was released from detention on remand.   B.    Relevant domestic law   1.    Detention on remand        Under S. 180 paras. 1 and 2 of the Code of Criminal Procedure (Strafprozeßordnung), as in force at the relevant time, a person could be held in detention on remand if he was seriously suspected of having committed a criminal offence and if there was a risk of his absconding, of collusion or of committing further offences.   Under S. 180 para. 7 detention on remand must be ordered by the court if the person is suspected of having committed a crime with a minimum penalty of 10 years imprisonment unless specific facts show that all grounds for detention can be excluded.        According to S. 193, detention may not last more than two months where its sole justification is the risk of collusion; it may not last more than six months where one of the other grounds is relied on. The second-instance court may, however, if so requested by the Investigating Judge or the public prosecutor and if the difficulty or the scope of the investigations makes it necessary, extend the detention. In such cases the maximum duration of detention is three months where the measure is based on a risk of collusion alone, and one year, or even two years, if the term of imprisonment which the suspect risks is ten years or more, in the other circumstances provided for.        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.        2. Proceedings before a Court of Assizes        According to S. 14 of the Code of Criminal Procedure a Court of Assizes is competent to determine criminal charges for crimes which are liable to punishment of life imprisonment or imprisonment of not less than five years and more than ten years or political offences like treason and attacks on the supreme organs of the State.   According to S. 300 the Court of Assizes is composed of a jury (Geschwornenbank) comprising eight members and a bench of three professional judges (Schwurgerichtshof).   Only the jury decides by a verdict on the conviction, on the basis of a questionnaire drawn up by the bench (S. 310).   The sentence is imposed by the jury together with the professional judges (S. 338).   If the bench unanimously finds that the jury has committed an error in replying to the principal question, the bench has to set aside the verdict and submit the case to the Supreme Court (S. 334 para. 1).   The Supreme Court has to remit the case to another Court of Assizes (S. 334 para. 2).   In the new trial members of the previous Court of Assizes are excluded (S. 334 para. 3).   COMPLAINTS   1.    Under Article 5 para. 3 of the Convention the applicant complains about the length of his detention in remand.   2.    The applicant also complains under Article 6 para. 1 of the Convention about the length of the proceedings.   3.    Under the same provision the applicant complains further that the criminal proceedings against him were unfair.   He submits that the bench of the Court of Assizes did not give any reasons for its decision for setting aside the verdict of the jury and there was no appeal against such a decision.   He further submits that one of the professional judges was biased.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 17 December 1992 and registered on 11 August 1993.        On 7 April 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 24 September 1994 after an extension of the time-limit fixed for that purpose.   The applicant replied on 26 December 1994, also after an extension of the time-limit.   On 2 February 1995 the Government submitted a time-schedule of the criminal proceedings against the applicant.   THE LAW   1.    Under Article 5 para. 3 (Art. 5-3) of the Convention the applicant complains about the length of his detention in remand.        Article 5 para. 3 (Art. 5-3) of the Convention reads as follows:        "Everyone arrested or detained in accordance with the      provisions of paragraph 1 (c) of this Article shall be      brought promptly before a judge or other officer authorised      by law to exercise judicial power and shall be entitled to      trial within reasonable time or release pending trial.      Release may be conditioned by guarantees to appear for      trial."        The Government submit that the lawfulness of his detention on remand is not disputed by the applicant.   The ordering of detention on remand by the Investigating Judge and its upholding throughout the proceedings was in accordance with Austrian law.   The suspicion against the applicant related to a charge of murder which carries a prison sentence between 10 and 20 years or a life sentence.   In cases which involve the risk of such a severe sentence there is a very high risk of absconding.        The Government submit that the criminal investigations and the subsequent trial concerned an extremely complex case, in particular because the facts charged occurred in the United States and the relevant investigations could therefore only be carried out with the assistance of the United States authorities.   Further difficulties in the investigations were due to the fact that there were no eye witnesses and that the applicant and the co-defendant accused each other of having committed the crime.   Also extensive expert evidence had to be taken.   The whole case-file covered 27 volumes of some 14.000 pages.   Nevertheless the Investigating Judge and the police authorities conducted the investigations after the applicant's arrest expeditiously.   When the United States authorities did not act speedily on the letters rogatory, they were repeatedly urged to do so by the Investigating Judge.        The applicant submits that the investigations against him were not carried out with the necessary diligence and remained incomplete. This was also the reason why at the first trial the case was referred back to the Investigating Judge for supplementing the enquiries.   The coordination with the United States police was not efficient which resulted in delays in the investigation.   Some witnesses were heard and expert evidence taken for the first time as late as in spring 1992. In his view the case was not particularly complex.        As regards the period to be taken into consideration for the purposes of Article 5 para. 3 (Art. 5-3) of the Convention, the Commission notes that the applicant was taken into detention on remand on 5 February 1989.   He was released on 17 June 1992, after his acquittal by the Court of Assizes.   The Commission notes, however, that during this period the applicant served terms of imprisonment imposed in two other criminal proceedings, namely between 17 May and 6 June 1989 and between 16 June and 31 July 1989.   Furthermore, the detention on remand between 6 February 1989 and 17 May 1989 was counted towards the first of these convictions.   These periods must be deducted when calculating the relevant period under Article 5 para. 3 (Art. 5-3) of the Convention in the present case (see No. 8626/79, Dec. 12.3.81, D.R. 25 p. 218; No. 9132/80, Dec. 16.12.82, D.R. 31 p. 154 at p. 173). Thus the period of detention on remand to be considered by the Commission is 2 years and 11 months.        According to the relevant case-law of the Convention organs, two elements must be taken into account in assessing the reasonableness of the length of pre-trial detention.   On the one hand, compelling reasons which make the detention on remand necessary must exist throughout the whole period of detention.   On the other hand, the authorities and courts must conduct the criminal investigations and proceedings expeditiously during this period.        As regards the first element, 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 (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, Series A no. 254, p. 15, para. 30).        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 (Eur. Court H.R., Letellier judgment, loc. cit.; W. v. Switzerland judgment, loc. cit.).        Furthermore the right of a detained accused 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 (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., p. 19, para. 42).        In the present case, the Investigating Judge, when taking the applicant into detention on remand and when subsequently ordering the continuation of that detention, relied on the strong suspicion against the applicant that he had committed murder.   In accordance with Section 181 para. 7 of the Code of Criminal Procedure the Investigating Judge merely found that there were no reasons which would exclude the existence of the grounds for detention mentioned in paragraphs 1 and 2 of Section 180.   In this respect it should, however, be taken into account that the applicant, who could have filed a request for release at any time, did not submit any arguments which could have excluded the existence of these grounds for detention.   Such proceedings would have had to be examined by the Judges' Chamber in a hearing or, upon appeal, by the Court of Appeal.   Only after the verdict of the jury had been set aside in the first trial the applicant, on 21 November 1991, requested his release from detention on remand.   On 4 December 1991 this request was dismissed by the Judges' Chamber which stated the reasons why a suspicion and a danger of the applicant's absconding continued to exist.        In such circumstances the Commission finds that there were sufficient and relevant grounds justifying the applicant's detention on remand throughout the whole period of his detention.        Turning to the conduct of the authorities during the period of the applicant's detention on remand, the Commission notes that the preliminary investigations started in February 1989 and the Public Prosecutor's Office preferred the indictment in June 1990.   In October 1990, after the applicant's objections against the bill of indictment had been dismissed, the Presiding Judge of the Court of Assizes scheduled the trial for December 1990 and summoned several witnesses in the United States.   Due to developments at the trial the case was remitted to the Investigating Judge and in July 1991 the trial was resumed.   It lasted until October 1991.   As the verdict of the jury was set aside, a new trial took place which lasted from March 1992 to June 1992.        The Commission finds that the criminal proceedings instituted against the applicant were quite complex.   The crime of which the applicant was accused had taken place in the United States, evidence had to be gathered there with the assistance of the United States authorities, while the trial against the applicant had to take place in Austria.   The Commission does not find that there are significant periods of inactivity which could be imputed to the Austrian authorities.   Numerous witnesses appeared at the two trials and extensive expert evidence had to be taken. It appears that at some stages letters rogatory addressed to the United States authorities were not answered right away.   However, in such cases the Investigating Judge urged these authorities to do so.        Taking into account these circumstances the Commission finds that the length of the applicant's detention on remand did not exceed a reasonable time.        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 also complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of the proceedings.        Article 6 para. 1 (Art. 6-1) of the Convention, as far as relevant, reads as follows:        "In the determination of ... any criminal charge against      him, everyone is entitled to a fair and public hearing      within a reasonable time by an independent and impartial      tribunal established by law..."        The Government submit that the length of the criminal proceedings against the applicant cannot be regarded as unreasonable.   The case was particularly complex and required extensive investigations abroad.   The Austrian authorities dealt speedily with the case.        This is disputed by the applicant.        The Commission observes that the criminal proceedings against the applicant started on 5 February 1989, when he was arrested, and terminated on 17 June 1992, when he was acquitted and released from detention on remand.        Accordingly, the length of the criminal proceedings against the applicant coincides essentially with the length of his detention on remand.   Having found no failure on the part of the national authorities in their duty of particular diligence under Article 5 para. 3 (Art. 5-3), the Commission must a fortiori accept that there has been no breach of the obligation contained in Article 6 para. 1 (Art. 6-1) of the Convention (Schertenleib v. Switzerland, Comm. Report 11.12.80, D.R. 23, p. 201, para. 191).        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.   3.    Finally, the applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the criminal proceedings against him were unfair.        The Commission notes that on 17 June 1992 the Court of Assizes at the Innsbruck Regional Court acquitted the applicant.   Any procedural defects which may have existed at the time the applicant's trial must therefore be considered to have been rectified by his subsequent acquittal (see No. 5575/72, Dec. 8.7.74, D.R. 1 p. 45; No. 8083/77, Dec. 13.3.80, D.R. 19 p. 226; No. 15831/89, Dec. 25.2.91, D.R. 69 p. 317).   Accordingly, the applicant cannot now claim to be a "victim" of a violation of the Convention within the meaning of Article 25 (Art. 25) since he sought and obtained redress for his complaints in this respect.        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.        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)                         (C.L. ROZAKIS)