Přehled
Rozhodnutí
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)