CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 26 janvier 1993

.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 Toth case delivered on 12 December 1991 and transmitted the same day to the Committee of Ministers;        Recalling that the case originated in an application against Austria lodged with the European Commission of Human Rights on 12 October 1985 under Article 25 (art. 25) of the Convention by Mr Stefan Toth, an Austrian national, who complained on the one hand of the length of his pre-trial detention and on the other hand that the proceedings before the Court called on to rule on his release were not adversarial;        Recalling that the case was brought before the Court by the Commission on 15 October 1990 and by the Government of Austria on 18 December 1990;        Whereas in its judgment of 12 December 1991 the Court:        - held unanimously that there had been a violation of Article 5, paragraph 3 (art. 5-3);        - dismissed unanimously the preliminary objection raised by the Government concerning the complaint on the proceedings in the Court of Appeal for the examination of Mr Toth's applications for release;        - held by eight votes to one that there had been a violation of Article 5, paragraph 4 (art. 5-4), inasmuch as those proceedings were not adversarial;        - held by eight votes to one that Article 5, paragraph 4 (art. 5-4), did not apply to the proceedings in the Court of Appeal concerning the extensions of the applicant's pre-trial detention;        - held unanimously that the respondent state was to pay to the applicant, within three months, 7 853,40 Austrian schillings in respect of costs and expenses;        - dismissed unanimously the remainder of the claim for just satisfaction;        Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 (art. 54) of the Convention;        Having invited the Government of Austria to inform it of the measures which had been taken in consequence of the judgment of 12 December 1991, having regard to its obligation under Article 53 (art. 53) of the Convention to abide by it;        Whereas, during the examination of the case by the Committee of Ministers, the Government of Austria gave the Committee information about the measures taken in consequence of the judgment, which information appears in the appendix to this resolution;        Having satisfied itself that the Government of Austria has paid the applicant the sum provided for in the judgment,        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 (93)4          Information provided by the Government of Austria             during the examination of the Toth case                  by the Committee of Ministers        A bill amending the Code of Criminal Procedure in order to take into account the findings of the Court in the present case was brought before Parliament in January 1993.        Pending entry into force of this act, the Minister of Justice already invited, via a circular (Erlass) dated 5 October 1992, the presidents of the courts and the principal public prosecutors to take the necessary measures in order to avoid situations in the future such as the one that led in the present case to findings of violations of paragraphs 3 and 4 of Article 5 (art. 5-3, art. 5-4) of the Convention.        The circular indicates that pending deletion of Section 35, paragraph 2, of the Code of Criminal Procedure, members of the principal public prosecutors' office are invited not to use the right that this provision confers upon them to participate in the hearing before second instance courts, as it is not possible for the accused to be heard.        The circular also provides that, in order to avoid delays in the investigation of criminal cases due to the transmission to appellate or other courts of the original file, the competent investigation authorities must in future, before transmission, make a photocopy of the file or the relevant parts thereof, at least in those cases where the person charged is in detention.        The sum awarded in respect of costs and expenses was paid on 11 February 1992.