CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 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. 25049/94                       by Ludwig LERCHEGGER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 26 June 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  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 1 July 1993 by Ludwig LERCHEGGER against Austria and registered on 31 August 1994 under file No. 25049/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen, born in 1952 and presently detained at the Graz prison.        The facts of the case, as they have been submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        On 5 August 1992 the Graz Public Prosecutor's Office filed a bill of indictment against the applicant charging him with various counts of fraud committed between 23 May 1992 and 29 June 1992.        On 21 November 1992 the applicant was arrested on suspicion of having meanwhile committed further offences of fraud between 20 June and 20 November 1992.   On 22 November 1992 an Investigating Judge of the Graz Regional Court (Landesgericht) ordered that the applicant be taken into detention on remand.   He found that a serious suspicion of having committed fraud existed against him.   Furthermore his detention on remand was necessary as there was a danger of his absconding, of collusion and of committing further offences.        On 29 December 1992 the Investigating Judge decided not to include these charges in the criminal proceedings concerning the bill of indictment of 5 August 1992, but to institute separate preliminary investigations.        On 15 January 1993 the Salzburg Regional Court convicted the applicant of fraud and sentenced him to two months' imprisonment.        On 11 March 1993 the trial on the bill of indictment of 5 August 1992 took place before the Graz Regional Court.   On the same day the Regional Court convicted the applicant of fraud and sentenced him to an additional term of imprisonment of four months, taking into account the Salzburg Regional Court's judgment of 15 January 1993.   The Regional Court further decided to count the detention on remand until 11 March 1993 towards the above sentence and the sentence imposed by the Salzburg Regional Court.   The applicant waived his right to appeal.        Between 11 March 1993 and 20 May 1993 the applicant was taken into detention after conviction.   On 20 May 1993, pursuant to an order of the Investigating Judge of 18 May 1993, the applicant was taken again into detention on remand.        On 26 May 1993 the Judges' Chamber (Ratskammer) of the Graz Regional Court dismissed the applicant's request for release from detention on remand.        On 18 June 1993 the Graz Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal against the Judges' Chamber's decision of 26 May 1993.        On 6 July 1993 the Graz Public Prosecutor's Office filed a further bill of indictment against the applicant charging him with fraud on 11 counts.   These charges concerned the events with regard to which the applicant had been arrested on 21 November 1992.        On 27 July 1993 the applicant, represented by counsel, filed a fundamental rights complaint (Grundrechtsbeschwerde) with the Supreme Court (Oberster Gerichtshof) submitting that his detention on remand was unlawful.        On 16 August 1993 the Supreme Court dismissed the above complaint against the Court of Appeal's decision of 18 June 1993.   The Supreme Court noted that the applicant had been taken again into detention on remand on 20 May 1993 and the trial had been scheduled for 26 August 1993.   The Supreme Court found that the applicant had not been in detention on remand since 21 November 1992 without interruption as he had argued.   The maximum period of six months of detention on remand under the relevant provisions of the Code of Criminal Procedure had not expired as the applicant had meanwhile served a sentence of imprisonment and the six months' period had started anew on 20 May 1993.   Moreover, the facts in regard to which detention on remand had been imposed on the applicant on 21 November 1992 were not the same as meanwhile further charges of fraud had been brought to the notice of the investigating judge.   A strong suspicion of having committed fraud existed against the applicant, which justified detention on remand. Whether the elements gathered in the preliminary investigation were sufficient to lead to his conviction was a matter to be decided by the trial court.   As regards the grounds for detention, the Supreme Court found that the danger of the applicant committing further offences existed.   In this respect it referred to the applicant's criminal record and the fact that he was suspected of having continued to commit criminal offences even after criminal proceedings had been instituted against him.   There was nothing to show that the criminal proceedings were not conducted with the necessary diligence.        On 26 August 1993 the trial of the applicant, who was represented by counsel, started before the Graz Regional Court.   The applicant made numerous requests for taking of evidence, including, inter alia, the obtaining of experts opinions and investigations to be carried out in the United States on the existence of a firm he had claimed to be the owner of.   The Regional Court granted these requests and decided, in view of the complexity of the evidence to be taken, to remit the case to the Investigating Judge.        On 22 September 1993 the Judges Chamber dismissed a further request for release from detention on remand.   On 8 October 1993 the Court of Appeal dismissed the applicant's appeal.        On 25 October 1993 the Graz Public Prosecutor's Office filed a further bill of indictment against the applicant charging him with fraudulent conversion.        On 12 November 1993 the Court of Appeal decided that the applicant's detention on remand might last up to a maximum period of ten months.        On 9 December 1993 the Judges' Chamber of the Graz Regional Court dismissed a request by the applicant for release from detention on remand.   It found that in view of the results of the preliminary investigations a serious suspicion against the applicant existed and that there was a risk that he would commit further offences if released.   The situation has not changed since the last decision of the Court of Appeal, taken on 12 November 1993.   Moreover, having regard to the sentence the applicant risked in case of conviction, the length of his detention on remand was not disproportionate.        The applicant appealed against the Judges' Chamber's decision of 9 December 1993.   He submitted that no serious suspicion existed because the charges against him were absurd and based on manipulated facts.        On 15 and 16 December 1993 the police informed the Investigating Judge of the result of its investigations in the United States concerning the existence of a firm of which the applicant was allegedly the owner.        On 27 December 1993 the applicant challenged all judges of the Graz Regional Court for bias.        On 5 January 1994 the Graz Court of Appeal dismissed the applicant's appeal against the decision of the Judges' Chamber of 9 December 1993.   It further decided that detention on remand might last up to 5 March 1994.   The Court of Appeal found that the continuation of the applicant's detention on remand was necessary because of the difficulties and extent of the investigations.   At the court hearing on 26 August 1993 the applicant had made numerous requests for taking of evidence and the case had therefore been referred back to the Investigating Judge.   In view of the result of the further investigations a serious suspicion existed against him.   In this respect the Court of Appeal noted that according to police reports received by the court, the applicant's allegations that he had founded and registered a company in the United States had been incorrect.   The Court of Appeal also found that there was the risk that the applicant would commit further offences if released and referred in this respect to its previous decision of 12 November 1993.        On 18 January 1994 the Judges' Chamber dismissed a further request for release.        On 19 January 1994 the Graz Regional Court decided that the applicant's trial should continue on 10 February 1994.        On 31 January 1994 the Graz Court of Appeal dismissed the applicant's challenge for bias of 27 December 1993.   It found that the applicant had failed to submit any concrete arguments on the basis of which an examination of the question whether specific members of the Regional Court were biased against him could be carried out.        On 10 February 1994 the trial against the applicant was resumed. On the same day the Regional Court convicted him of fraud on eight counts, of deception and of fraudulent conversion and acquitted him of further charges of fraud and deception.   The Regional Court sentenced him to four and half a years' imprisonment.        The applicant introduced a plea of nullity and appeal against the above judgment.        On 15 March 1994 the Supreme Court dismissed a further fundamental rights complaint by the applicant.   It found that in view of the applicant's conviction of 10 February 1994 his arguments against the existence of a serious suspicion against him were no longer relevant.        On 11 May 1994 the Regional Court dismissed a further request by the applicant for release.   On 27 June 1994 the Court of Appeal dismissed the applicant's appeal.        On 28 July 1994 the Supreme Court dismissed the applicant's fundamental rights complaint against the Court of Appeal's decision of 27 June 1994.   It noted that on 10 February 1994 the Graz Regional Court had convicted the applicant of fraud and sentenced him to four and half a years' imprisonment.   In view of the conviction the Supreme Court found that it no longer had to deal with the arguments of the applicant against the existence of a serious suspicion.   This issue had to be dealt with in the proceedings on his plea of nullity.   The Supreme Court also found that no delays in the proceedings had occurred.        On 7 September 1994 the Supreme Court decided on the plea of nullity.   It quashed the applicant's conviction regarding one count of fraud and the conviction regarding fraudulent conversion, and confirmed the conviction as regards the remaining charges.   The Supreme Court also quashed the applicant's sentence and found that the sentence had to be fixed once the remaining charges were determined.        On 15 September 1994 the Regional Court dismissed the applicant's request for release.   It found that in view of the partial confirmation of his conviction by the Supreme Court, the applicant's arguments against the existence of a serious suspicion were not relevant.   The risk that the applicant would commit further offence if released continued to exist.        On 3 October 1994 the Court of Appeal dismissed the applicant's appeal against the Regional Court's decision of 15 September 1994.        On 30 December 1994 the Graz Regional Court, upon the request of the Public Prosecutor's Office, discontinued criminal proceedings concerning the charges in regard of which the Supreme Court had quashed the applicant's conviction.        On 11 January 1995 the Graz Regional Court, after an oral hearing, fixed again the applicant's sentence concerning his conviction of 10 February 1994.   It sentenced him to four years' imprisonment.        On 26 April 1995 the Supreme Court rejected the applicant's further plea of nullity and on 21 June 1995 the Graz Court of Appeal dismissed the applicant's appeal against sentence.   B.    Relevant domestic law   1.    Detention on remand under the Code of Criminal Procedure      (Strafprozeßordnung) as in force until 1 January 1994        Under S. 180 paras. 1 and 2 of the Code of Criminal Procedure, 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 repetition of 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.    Detention on remand under the Code of Criminal Procedure      (Strafprozeßordnung) after 1 January 1994        On 1 January 1994 an amendment to the Code of Criminal Procedure (Strafprozeßänderungsgesetz 1993) entered into force which changed some of the provisions governing detention on remand.   According to the new version of SS. 181 and 182 detention on remand may for the first time only be ordered for 14 days, prolonged the first time for 1 month and prolonged subsequently and repeatedly for 2 months.   Before the prolongation of detention on remand the Investigating judge has to hold a hearing in camera in the presence of the detained, his counsel and the public prosecutor.   Against the Investigating Judges' decision an appeal can be lodged with the Court of Appeal.   3.    Fundamental Rights Complaint Act (Grundrechtsbeschwerde-Gesetz)        Under this act, which entered into force on 1 January 1994, every detained person may lodge a complaint to the Supreme Court which has to examine whether the fundamental right to personal freedom, as guaranteed by the Constitutional Act on Personal Freedom (Bundesverfassungsgesetz über den Schutz der persönlichen Freiheit) and Article 5 of the Convention has been violated by the decision of a criminal court.   If the Supreme Court has found a violation the courts concerned must take immediately the necessary steps for complying with the decision.   The person complaining must exhaust existing remedies and lodge the complaint within a time-limit of 14 days.   The complaint must be presented by a lawyer and legal aid is available for such proceedings.   COMPLAINTS        The applicant complains about the length of his detention remand and submits that there had been neither a serious suspicion against him, nor valid grounds for taking him into detention on remand.   He invokes Article 5 paras. 3 and 4 of the Convention.   THE LAW        The applicant complains about the length of his detention on remand.        The Commission finds that the application has to be examined under Article 5 para. 3 (Art. 5-3) of the Convention which, insofar as relevant, provides as follows:        "Everyone arrested or detained in accordance with the provisions      of paragraph 1 (c) of this Article ... shall be entitled to trial      within a reasonable time or to release pending trial."        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 arrested on 21 November 1992 and convicted at first instance by the Regional Court on 10 February 1994.   The Commission notes, however, that during this period the applicant served a term of imprisonment imposed in other criminal proceedings, namely between 11 March and 20 May 1993.   Furthermore, the detention on remand between 21 November 1992 and 11 March 1993 was counted towards these convictions (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). Furthermore, the period following the applicant's conviction at first instance cannot be taken into account for the purpose of Article 5 para. 3 (Art. 5-3) of the Convention (Eur. Court H.R., B. v. Austria, judgment of 28 March 1990, Series A no. 175, p. 14 para. 36).   Thus the period of detention on remand to be considered by the Commission is 8 months and 3 weeks.        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.).        In the present case the applicant's detention on remand was, according to the findings of the competent courts, based on the strong suspicion that he had committed several counts of fraud, fraudulent conversion and deception.   The existence of this suspicion was examined by the Investigating Judge, the Judges' Chamber, the Court of Appeal and the Supreme Court on the occasion of the applicant's repeated requests for his release and answered by the courts to the affirmative. Furthermore, these courts also found that there was the risk that the applicant would commit further offences if released.   In substantiating this risk the courts relied on the applicant's heavy criminal record and the fact that although criminal proceedings had already been pending against him, he had been charged with further criminal offences committed meanwhile.        The Commission finds that the applicant's continued detention on remand was thus based on sufficient and relevant grounds.        The Commission further recalls that 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).        The Commission notes that the applicant after having served previous prison sentences, was taken into detention on remand on 20 May 1993.   On 6 July 1993 the Public Prosecutor's Office filed a bill of indictment against him.   On 26 August 1993 the trial against the applicant started but the case was remitted to the Investigating Judge because further evidence requested by the applicant, including an expert report and police enquiries in the United States, had to be taken.   On 25 October 1993 the Public Prosecutor's Office filed a further bill of indictment against him.   On 19 January 1994 the Regional Court, after the supplementary investigations had been completed, scheduled the continuation of the applicant's trial for 10 February 1994.   On 31 January 1994 the applicant's challenge for bias of all judges of the Regional Court was dismissed.   On 10 February 1994 the trial against the applicant was resumed and on the same day he was convicted.   Furthermore, during this period numerous requests for release from detention on remand were decided by the courts.        In these circumstances the Commission considers that the period of the applicant's detention on remand prior to his conviction by the Graz Regional Court on 10 February 1994 did not exceed a reasonable time within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.        The Commission further observes that, should the length of the applicant's detention between the Supreme Court's judgment of 7 September 1994, partially quashing the applicant's conviction and quashing his sentence, and the fixing of a new sentence by the Regional Court on 11 January 1995 be considered under Article 5 para. 3 (Art. 5-3) of the Convention, this period of approximately three months does not appear unreasonable.        It follows that 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 THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)