[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> TOTH v. AUSTRIA - 11894/85 [1991] ECHR 72 (12 December 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/72.html Cite as: (1992) 14 EHRR 551, 14 EHRR 551, [1991] ECHR 72

[New search] [Contents list] [Help]

In the case of Toth v. Austria*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention")** and the

relevant provisions of the Rules of Court***, as a Chamber composed

of the following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr F. Matscher,

Sir Vincent Evans,

Mr A. Spielmann,

Mr S.K. Martens,

Mr I. Foighel,

Mr R. Pekkanan,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,

Deputy Registrar,

Having deliberated in private on 27 May and 25 November 1991,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 47/1990/238/308. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

*** The amendments to the Rules of Court which came into force on

1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 15 October 1990

and then by the Government of the Republic of Austria ("the

Government") on 18 December 1990, within the three-month period

laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47)

of the Convention. It originated in an application (no. 11894/85)

against Austria lodged with the Commission under Article 25

(art. 25) by an Austrian national, Mr Stefan Toth, on

12 October 1985.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Austria

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46); the Government's application referred to Article 48

(art. 48). The object of the request and of the application was to

obtain a decision as to whether the facts of the case disclosed a

breach by the respondent State of its obligations under

Article 5 paras. 3 and 4 (art. 5-3, art. 5-4).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated

that he wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr F. Matscher, the elected judge of Austrian nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 26 October 1990,

in the presence of the Registrar, the President drew by lot the

names of the other seven members, namely Mr Thór Viljhálmsson,

Sir Vincent Evans, Mr A. Spielmann, Mr N. Valticos,

Mr S.K. Martens, Mr I. Foighel and Mr R. Pekkanen (Article 43 in

fine of the Convention and Rule 21 para. 4) (art. 43).

Subsequently, Mr F. Gölcüklü, substitute judge, replaced

Mr J. Cremona, who was unable to take part in the further

consideration of the case and who had first replaced Mr Valticos,

likewise unable to take part (Rules 22 para. 1 and 24 para. 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the Government, the Delegate of the Commission and the

applicant's lawyer on the organisation of the proceedings

(Rules 37 para. 1 and 38). In accordance with the order made in

consequence, the Registrar received the Government's memorial

on 13 February 1991 and the applicant's memorial on 7 March 1991.

On 9 April the Secretary to the Commission informed the Registrar

that the Delegate would submit his observations at the hearing.

On 26 November 1990 the President had authorised the applicant to

use the German language (Rule 27 para. 3).

5. On 14 May 1991 the Commission produced the documents in the

proceedings before it, as requested by the Registrar on the

President's instructions.

6. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg, on

22 May 1991. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr H. Türk, Ambassador, Legal Adviser,

Ministry of Foreign Affairs, Agent,

Mrs S. Bernegger, Federal Chancellery,

Mrs I. Gartner, Federal Ministry of Justice, Advisers;

(b) for the Commission

Sir Basil Hall, Delegate;

(c) for the applicant

Mrs K. Hermann, Rechtsanwältin, Counsel.

The Court heard addresses by the above-mentioned representatives.

7. On the occasion of the hearing, the Agent of the Government

filed a document. On 17 October he provided information requested

by the Registrar on the President's instructions.

AS TO THE FACTS

I. The particular circumstances of the case

8. Mr Stefan Toth, an Austrian national residing in Graz,

works washing dishes in a restaurant.

9. On 1 June 1984 the Salzburg Regional Court (Landesgericht)

issued a warrant for his arrest (Haftbefehl). He was suspected of

aggravated fraud (schwerer Betrug), aided and abetted by a certain

J. M.; he had in particular made out a number of bad cheques drawn

on bank accounts opened by J. M., then cashed in different banks.

The warrant stated that there was a risk of his absconding

(Fluchtgefahr), because his address was unknown, and of repetition

of the offences (Wiederholungsgefahr), as Mr Toth had several

previous convictions.

10. On 24 August 1984 the same court issued an international

arrest warrant (Steckbrief) concerning the applicant. It referred

to eleven cases of attempted fraud or aggravated fraud involving

more than one million Austrian schillings and affecting financial

establishments of various towns in the Federal Republic of Germany

and Austria. It mentioned a certain B. as the third co-accused.

11. On 11 January 1985 at 11 p.m. the police arrested Mr Toth

at the airport of Graz, the town where he was living, although not

duly registered there as a resident; he had been waiting for a

friend. He was then taken to Feldkirchen.

A. The investigation proceedings

1. The police custody

12. An investigating judge of the Graz Regional Court

interviewed the applicant the following day at 10.40 a.m.

According to the document entitled "Examination of the accused"

(Vernehmung des Beschuldigten), the judge informed him that the

arrest warrants were based on suspicion of several offences of

aggravated fraud and that the police custody (Verwahrungshaft) was

intended to guard against the risk of his absconding and the risk

of collusion (Verabredungsgefahr).

On 17 January 1985 Mr Toth was transferred to Vienna and then

on 22 January to Salzburg.

2. The initial phase of the detention on remand

13. On 23 January 1985 he was examined by an investigating

judge of the Salzburg Regional Court. He signed the document

"Examination of the accused", which indicated that a preliminary

investigation (vorläufige Untersuchung) had been opened and that he

had been placed in detention on remand because of the risk of his

absconding and that of repetition of the offences (Article 180

paras. 1 and 2 of the Code of Criminal Procedure).

14. The same day the Regional Court ordered his detention

pending trial, for the reasons invoked by the investigating judge.

Previously Mr Toth had tried to evade prosecution by changing his

place of residence so that if released he was liable to evade trial

or to go into hiding to forestall his future conviction. In

addition, he was not socially integrated and was unemployed, which

gave grounds for fearing new offences, likely to have serious

consequences, of the type of those which had already brought him

two convictions.

15. The investigating judge questioned Mr Toth on 25, 28, 29,

30 and 31 January and on 1 February.

16. On 7 February the Swiss authorities indicated by telex

message that they were contemplating asking Austria to prosecute

the applicant for offences committed in Switzerland.

3. The application for release of 15 February 1985

17. On 15 February 1985 Mr Toth applied for his release. He

maintained that he could provide proof both of a permanent place of

residence at his sister's home and of prospects of employment.

18. The same day the investigating judge took cognisance of a

further complaint. On 19 February he ordered the police to make

inquiries in connection with the offences that the applicant had

allegedly committed in Switzerland and asked the Vienna Regional

Criminal Court to send him a file. The Government did not provide

any details on these various points.

19. On 27 February the Ratskammer (Review Chamber) of the

Regional Court of Salzburg dismissed his application for release,

following a hearing at which the applicant appeared with his

lawyer. It reiterated the grounds given in the decision of

23 January and added that other measures less stringent than

detention would not be sufficient to attain the aims pursued

thereby.

20. On 1 March 1985 the file was again returned to the

investigating judge. Between 6 and 19 March it was handed over to

the Salzburg public prosecutor's office and to the Linz Court of

Appeal in connection with the extension of the detention on remand

of the co-accused J. M., before being sent back to the Salzburg

court.

The investigating judge, who was away on leave from 20 March

to 15 April, questioned Mr Toth on 30 April about J. M. On 15 May

he requested documents from two Munich banks.

21. From 26 April to 1 May the applicant served a prison

sentence, imposed by the Salzburg District Court for a customs

offence.

4. The first extension of the detention on remand (19 June 1985)

22. On an application by the investigating judge, made on

7 June 1985, the Linz Court of Appeal (Oberlandesgericht) decided

on 19 June 1985, in private session, to extend the maximum duration

of the detention on remand to eight months from 23 January 1985.

The aggravated fraud of which the accused was strongly suspected

had resulted in a loss of more than 2,000,000 Austrian schillings.

The file had become exceptionally voluminous on account of the

large number of facts and of the contradictions in Mr Toth's

statements and those of his co-accused. The most recent findings

of the investigation, and the scope and complexity of the case,

made it necessary to leave the prosecuting authorities sufficient

time to prepare the indictment and, if necessary, the subsequent

proceedings in the assize court. There were grounds for fearing

that the accused would evade the trial and commit new offences.

Finally, less stringent measures than detention were held to be

inadequate.

23. On 24 June the investigating judge wrote again to one of the

two Munich banks.

24. On 9 July 1985 Mr Toth challenged the decision of the Court

of Appeal in the Supreme Court (Oberster Gerichtshof), arguing that

he had a permanent place of residence in Austria, prospects of

employment and that he was greatly attached to his girlfriend. On

16 July he insisted that his file be forwarded, although the judge

had pointed out to him the futility of this step. On

22 August 1985 the Supreme Court found the appeal inadmissible.

The file was returned to the investigating judge on

11 September 1985.

5. The application for release of 12 September 1985

25. On 12 September 1985 Mr Toth asked the Salzburg Regional Court

to order his release as the period of eight months set by the Linz

Court of Appeal had expired. The European Court is not aware of

how this application was dealt with.

6. The second extension of the detention on remand

(18 September 1985)

26. On 18 September 1985 the Linz Court of Appeal, sitting in

private session, extended the maximum duration of the detention on

remand to eleven months, as it had been requested to do by the

investigating judge on 9 September. On the matter of the danger of

the applicant's absconding and of repetition of the offences, it

found that the circumstances had remained unchanged and therefore

referred to the grounds of the decisions of 27 February and

19 June 1985. It also considered that the reasons given ruled out

other measures less stringent than detention.

27. On 24 September the Salzburg Regional Court extended the

investigation to cover a charge of arson in Switzerland. Mr Toth

filed an appeal (Beschwerde) against this decision, which was

dismissed by the Ratskammer on 2 October 1985, inter alia, because

no supporting grounds were submitted.

28. When the investigating judge considered that the

preliminary investigation was terminated, he sent the file

on 2 October 1985 to the Salzburg public prosecutor's office

(Staatsanwaltschaft). On 31 October that office requested further

investigative measures, which were ordered on 7, 15

and 19 November.

On 3 December the file was forwarded to the Linz Court of Appeal

for its decision on Mr Toth's detention.

7. The application for release of 26 September 1985

29. On 26 September 1985 Mr Toth submitted an application for

release to the Constitutional Court (Verfassungsgerichtshof), which

declared it inadmissible on 28 February 1986.

8. The third extension of the detention on remand

(11 December 1985)

30. On 11 December 1985 at the request of the investigating judge

and the public prosecutor's office, the Linz Court of Appeal,

sitting in private session, extended the maximum duration of the

detention to fifteen months. In addition to the reasons given in

the previous decisions, it noted that the accused was also

suspected of having incited another person to burn down a

restaurant in Switzerland, causing damage of 300,000 Swiss francs.

It noted further that the investigation was not yet completed

because of the amount of the evidence.

9. The application for release of 13 December 1985

31. On 13 December 1985 the applicant again applied for his

release. On 20 December the file was transmitted to the Ratskammer

of the Salzburg Regional Court, which dismissed the application on

2 January 1986 at the end of a hearing attended by Mr Toth and his

lawyer. The investigation, at the stage which it had reached, gave

credence to the allegations of fraud and of issuing bad cheques for

2,000,000 Austrian schillings levelled at Mr Toth. As to the risks

of his absconding and of repetition of the offences, the position

had not changed since the decision of 11 December 1985.

32. The same day the investigating judge questioned the

applicant in connection with the statements of S. R., another

co-accused who had implicated him, and organised a confrontation

between them.

33. On 16 January 1986 Mr Toth challenged the decision of

2 January in the Linz Court of Appeal. That court dismissed the

appeal on 22 January in private session, "after hearing the

submissions of the principal public prosecutor's office" ("nach

Anhörung der Oberstaatsanwaltschaft"), but without having summoned

or heard the accused and his lawyer. It feared that the applicant

would abscond and cross the frontier clandestinely; it was

immaterial whether it was true, as the applicant claimed, that he

did not have identity papers allowing him to go to Germany, that he

was banned from entering that country and that he faced prosecution

in Switzerland. There was also a risk of repetition of the

offences as the applicant had five previous convictions, including

a sentence to twenty months' imprisonment, imposed by the Stuttgart

Regional Court, for fraud and forgery. The Court of Appeal did not

consider that the duration of the detention was excessive at that

stage, having regard to the likely sentence in the event of

conviction, and deemed the grounds for the detention sufficiently

well-founded to rule out other less stringent measures.

34. The investigating judge questioned the applicant for the

last time on 22 January 1986. He then went on leave from 1 to

14 February. On 19 February he wrote to an Austrian bank asking

for various documents.

10. The conclusion of the investigation

35. By decision of 26 February 1986, the investigating judge

concluded the preliminary investigation.

B. The trial proceedings

1. The indictment

36. On 12 March 1986 the Salzburg public prosecutor's office

indicted Mr Toth for various instances of attempted aggravated

fraud and of aggravated fraud, as well as forgery of a "specially

protected document" (besonders geschützte Urkunde). According to

the indictment, which was seventeen pages long, the applicant had

drawn cheques on various banks in Germany, Austria and Switzerland

and had instructed B. and J. M. to cash them in other banks in

these countries; the resulting loss amounted to 950,000 Austrian

schillings for the offences of aggravated fraud, and to

1,250,000 schillings for those of attempted fraud; the accused

already had two convictions for fraud and receiving stolen goods

and he was facing prosecution in Germany for nineteen offences of

cheque fraud. The prosecuting authorities stated that further

investigations were envisaged because the applicant was suspected

of arson as well as other instances of aggravated fraud.

37. On 19 March 1986 the indictment was communicated to

Mr Toth, who challenged it on 4 April, but to no avail.

On 11 April the Linz Court of Appeal took the view that the

conclusions of the investigation were sufficient to support the

charges pending against him; it therefore committed him for trial.

2. The fourth extension of the detention on remand

(11 April 1986)

38. The same day, but by a separate decision, the Court of

Appeal ruled in private session on a request from the investigating

judge of 4 April; it extended to seventeen months the maximum

duration of the detention on remand, having regard to the scope and

the complexity of the investigation. In its view, no new evidence

in Mr Toth's favour had come to light since 22 January 1986.

39. On 30 April the file was transmitted to the trial court,

the Salzburg Regional Court, which, on 23 May, set down the trial

for 11 June 1986.

40. On 5 June the applicant's lawyer indicated that he no

longer wished to represent Mr Toth. However, he was urged not to

withdraw before 11 June.

41. Mr Toth's trial opened on the appointed day, but the court

adjourned it sine die at the end of the first hearing, for further

inquiries to be undertaken, and appointed a lawyer to act for him.

The transcript of the hearing ran to 116 pages.

3. The application for release of 16 June 1986

42. On 16 June 1986 the applicant again applied for his

release, claiming that he had a permanent place of residence in

Austria and confirmation of steady employment.

43. His application was dismissed on 25 June by the Ratskammer

of the Salzburg Regional Court, then on 9 July by the Linz Court of

Appeal where the file had been sent on 3 July. The two courts gave

the same reasons as previously. The second gave its decision in

private session, "after hearing the submissions of the principal

public prosecutor's office".

44. On 24 July, ten days after the return of the file, the

Salzburg Regional Court sought information from the Vienna Regional

Court on the matter of the proposed date for B.'s release. On

29 July it requested a German court to communicate to it a

decision, which was received on 18 August.

4. The application for release of 25 July 1986

45. Claiming that he was financially and socially integrated

and that he lacked the necessary funds to flee, Mr Toth filed a

further application for release on 25 July 1986.

The Ratskammer of the Salzburg Regional Court dismissed it

on 30 July and the Linz Court of Appeal on 20 August, the latter

"after hearing the submissions of the principal public prosecutor's

office". The two courts reiterated the grounds given in their

previous decisions.

46. On 22 September the Regional Court contacted the Hirtenberg

detention centre for information concerning the date of B.'s

probable release and his address thereafter. On the same day it

sent letters rogatory to the Swiss Federal Police Department and to

the District Court of Aschaffenburg (Germany) for information in

respect of the witness D. On 15 October the Aschaffenburg District

Court replied that it did not know D.'s address. On 20 October the

Salzburg Regional Court obtained the address by telephoning

Frankfurt prison and requested the District Court of that town to

question D.

On 25 September the file had been communicated to a court expert,

who had lodged his report on J. M. on 8 October.

5. The application for release of 28 October 1986

47. Ruling in private session on 12 November 1986 and giving

the same reasons as in its previous decisions, the Ratskammer of

the Salzburg Regional Court refused to allow Mr Toth's application

for release of 28 October.

48. On 17 November Mr Toth filed an appeal which was dismissed

by the Linz Court of Appeal on 26 November, "after hearing the

submissions of the principal public prosecutor's office". It noted

that J. M. had implicated the applicant, who had not succeeded in

allaying the suspicions concerning him. For the rest, it

reiterated in substance the reasons given in its previous

decisions. The file was returned to the Salzburg Regional Court on

1 December.

49. In the meantime, on 12 November, Mr Toth had stated that he

wished to dispense with the services of the lawyer appointed to act

for him. On 16 December the Bar declared that it saw no reason to

appoint another defence lawyer.

50. On 17 November the applicant complained that no date had

been set down for the trial hearing. He was informed that the

court was waiting for the examination of D. which was to take place

on 27 November in the Frankfurt District Court.

On 3 December the latter court communicated to the Austrian

authorities the transcript of the examination of D.

51. On 12 and 16 December 1986, the trial court requested the

police of Dornbirn and Bregenz to provide it with the addresses of

B. and S. R.; on 22 January 1987 it sought information on the

former from the headquarters of the Salzburg federal police.

6. The applicant's application for release of 31 December 1986

52. On 31 December 1986 Mr Toth once again sought his release.

The Ratskammer of the Salzburg Regional Court rejected his

application on 21 January 1987.

7. The applicant's release

53. A further application for release was submitted to the

Ratskammer of the Salzburg Regional Court on 21 January 1987; it

was dismissed on 28 January.

On 18 February the Linz Court of Appeal allowed the appeal which

Mr Toth had filed on 3 February. It took the view that nearly

twenty-five months' detention had significantly reduced the risk of

the applicant's absconding and of repetition of the offences and

made it possible to impose more lenient measures. It attached

several conditions to the release: an undertaking not to evade the

trial and not to go into hiding before the conclusion of the trial

or to impede the investigation; it imposed an obligation to choose

a permanent place of residence in Austria and to communicate it to

the court and to report every two days to the police; his identity

papers were provisionally confiscated.

The applicant was released on the same day.

8. The additional indictment

54. On 9 July 1987 the Salzburg prosecuting authorities drew up

an additional indictment, nine pages long. In it Mr Toth was

charged with having, being aided and abetted by S. R., committed

other offences of fraud by seeking to cash fraudulently in Germany,

Austria and Switzerland bad cheques, which had allegedly caused a

loss of approximately 800,000 Austrian schillings. These offences

were therefore offences punishable by a term of imprisonment of

from one to ten years (Article 147 para. 3 of the Criminal Code).

The applicant appealed against this new indictment, but his appeal

was dismissed by the Linz Court of Appeal on 30 September.

55. The same day an application by Mr Toth to the Salzburg

Regional Court concerning the conditions imposed on him was

allowed, but only in part. He was authorised to report to the

police only once a week. The applicant appealed to the Linz Court

of Appeal, but his appeal was dismissed on 4 November 1987.

9. The trial

56. On 22 February 1988 the Regional Court set down the trial for

25 and 26 May. On that last date, it found the accused guilty of

aggravated fraud and sentenced him to four and a half years'

imprisonment, the pre-trial detention being automatically deducted

from the sentence. The text of the judgment comprised sixty-nine

pages.

By a judgment of 23 February 1989 the Linz Court of Appeal reduced

the sentence to four years. On 6 May 1990 the Salzburg Regional

Court stayed enforcement of that sentence.

II. The relevant domestic law

A. Detention on remand

57. Under Article 180 paras. 1 and 2 of the Code of Criminal

Procedure, as amended on 2 March 1983, a person may be held in

detention on remand - where there are serious grounds for

suspecting him of having committed a criminal offence - if there is

a risk of his absconding, of collusion or of repetition of the

offences.

58. A risk of absconding may not be presumed if the sentence

for which the accused is liable does not exceed five years'

imprisonment, if he leads a normal life and if he has a permanent

residence in Austria, unless he has already attempted to evade

trial (para. 3).

59. According to Article 193, detention may not last more than

two months if it is based only on the danger of collusion, or more

than six months if it is based on the other reasons.

The second-instance court may however, if the investigating judge

or the prosecuting authorities so request and if the complexity or

scope of the investigation makes it necessary, extend the detention

up to a maximum of three months in the case of suspected collusion,

and one year where the other grounds are relied on, or even two if

the sentence risked exceeds five years (paras. 3 and 4). In

exercising this power the appellate court sits in private session

in the absence of the detainee and his lawyer; it gives the

principal public prosecutor's office the opportunity to make

submissions (para. 2).

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

(para. 5).

60. The accused may lodge an application for release at any

time (Article 194 para. 2). Under Articles 194 and 195, such an

application is to be examined by the Ratskammer of the Regional

Court in a private hearing, in the presence of the accused and his

lawyer; in the appeal court - whether on appeal by the detainee or

the prosecuting authorities - the oral proceedings are also

conducted in private, in the presence of an official from the

principal public prosecutor's office, but without the accused and

his lawyer.

Where no such application is lodged, the Ratskammer automatically

reviews the detention when it has lasted two months or when three

months have elapsed since the last hearing and the accused does not

have a lawyer (Article 194 para. 3).

The fact that an indictment has become final or that the date for

the opening of the trial has been fixed means that no further

review hearings are conducted. Decisions concerning the

continuation of the accused's detention are thereafter taken by the

Ratskammer in private session (Article 194 para. 4).

61. Detention on remand comes to an end, at the latest, when

the accused begins to serve his sentence, from which the time spent

on remand is automatically deducted (Article 38 of the Criminal

Code).

B. Alternative measures to detention on remand

62. Article 180 para. 4 of the Code of Criminal Procedure

requires that detention on remand be not extended where its aims

may be attained by one or more more lenient measures. The main

measures envisaged in this respect are the following (Article 180

para. 5): undertaking not to abscond, to hide or to leave the place

of residence without the authorisation of the investigating judge;

promise not to impede the inquiry; obligation to reside in a

specific place or to refrain from frequenting a given locality or

from consuming alcoholic beverages; duty to inform the police of

changes of address; temporary withdrawal of passport or driving

licence; lodging of security; provisional appointment of a

probation officer.

Article 190 makes provision for the possibility of release on bail

when the offence in question is punishable by a term of

imprisonment of not more than ten years and where detention on

remand has been ordered to counter the danger of the accused's

absconding.

PROCEEDINGS BEFORE THE COMMISSION

63. In his application of 12 October 1985 to the Commission

(no. 11894/85), Mr Toth formulated a number of complaints

concerning his arrest and his detention on remand and the length of

the criminal proceedings as well as the conduct of the Austrian

authorities and courts.

64. On 8 May 1989 the Commission declared the application

admissible as regards the length of the detention on remand and in

relation to the proceedings before the Linz Court of Appeal. In

its report of 3 July 1990 (Article 31) (art. 31), it expressed the

opinion that there had been a violation of paragraphs 3 and 4 of

Article 5 (art. 5-3, art. 5-4). The full text of its unanimous

opinion and of the separate concurring opinion contained in the

report is reproduced as an annex to this judgment*.

__________________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment (volume 224 of

Series A of the Publications of the Court), but a copy of

Commission's report is obtainable from the registry.

_______________

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3)

65. Mr Toth relied on Article 5 para. 3 (art. 5-3), which is

worded as follows:

"Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article (art. 5-1-c) ...

shall be entitled to trial within a reasonable time or to

release pending trial. Release may be conditioned by

guarantees to appear for trial."

He claimed that the length of his pre-trial detention amounted to

a breach of that provision, an allegation contested by the

Government but accepted by the Commission.

A. Period to be taken into consideration

66. The period to be taken into consideration began on

11 January 1985, the date of the arrest, and ended on

18 February 1987, with the applicant's release following the

decision of the Linz Court of Appeal allowing his appeal (see

paragraphs 11 and 53 above), less the period - from 26 April to

1 May 1985 - during which the applicant was serving a prison

sentence (see paragraph 21 above). It therefore lasted two years,

one month and two days.

B. Reasonableness of the length of the detention

67. It falls in the first place to the national judicial

authorities to ensure that, in a given case, the pre-trial

detention of an accused person does not exceed a reasonable time.

To this end they must examine all the circumstances arguing for and

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 applications for

release. It is essentially on the basis of the reasons given in

these decisions and of the true facts mentioned by the detainee in

his applications for release and his appeals that the Court is

called upon to decide whether or not there has been a violation of

Article 5 para. 3 (art. 5-3).

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 Court must then establish whether

the other grounds cited by the judicial authorities continued to

justify the deprivation of liberty. Where such grounds were

"relevant" and "sufficient", the Court must also ascertain whether

the competent national authorities displayed "special diligence" in

the conduct of the proceedings (see, as the most recent authority,

the Kemmache v. France judgment of 27 November 1991, Series A

no. 218, p. 23, para. 45).

1. The justification of the detention

68. In dismissing Mr Toth's applications for release, the courts

put forward in essence two reasons: the need to prevent the

repetition of the offences and the need to guard against the danger

of his absconding.

(a) The risk of repetition of the offences

69. According to the Government there was a genuine risk of

repetition of the offences because the applicant had several

previous convictions for offences similar to those which were the

subject of the proceedings pending against him.

Mr Toth argued on the contrary that those convictions did not

constitute sufficient justification.

70. The Court notes that the contested decisions took account of

the nature of the earlier offences and the number of sentences

imposed as a result, although they differed to some extent between

each other on that last point (see paragraphs 14 and 33 above). It

shares the Commission's view that the national courts could

reasonably fear that the accused would commit new offences.

(b) The danger of absconding

71. The Government further contended that there had been a danger

of the applicant's absconding. They cited the severity of the

sentence risked by Mr Toth and the gravity of the charges pending

against him. They drew attention to the earlier attempts by the

applicant to evade prosecution by frequently changing address

without registering with the authorities. They added that the

courts called upon to rule on Mr Toth's pre-trial detention had

envisaged less stringent measures, but ultimately decided against

them.

The applicant, for his part, argued that he had a permanent

residence in Austria and could easily obtain steady employment

which would ensure his re-integration into society.

72. Like the Commission, the Court considers that the national

courts based their decisions on grounds which provided a sufficient

explanation as to why, notwithstanding the arguments advanced by

Mr Toth in support of his applications for release, they considered

the danger of his absconding decisive (see paragraphs 19, 22, 26,

30, 31, 33, 38, 43, 45, 47 and 48 above).

(c) Conclusion

73. In sum the reasons put forward for dismissing Mr Toth's

applications were both relevant and sufficient.

2. The conduct of the proceedings

74. According to the applicant, various inquiries were still in

progress when he was indicted and the trial had been set down for

11 June 1986 only in order to make it possible to prolong his

detention without a time-limit.

75. The Government took the view that the length of that detention

was in no way unreasonable. They stressed in the first place the

complexity and scope of the case. Comparing it with the case of B.

v. Austria (judgment of 28 March 1990, Series A no. 175), they

referred in support of their argument to the size of the file

(twelve volumes) and the length of the first-instance judgment

(sixty-nine pages). They also drew attention to the dates of the

measures taken in the proceedings in order to show that the

authorities had displayed diligence throughout almost all the

periods criticised by the Commission in its report (see

paragraph 76 below), which corresponded essentially to the holidays

of the investigating judge. Finally they emphasised the large

number of applications for release made by Mr Toth and therefore

held him partly responsible for the length of his detention.

76. The Commission acknowledged that the investigation raised

some difficult questions of fact which contributed to lengthening

the proceedings. It also considered that several of the

applications and appeals by the applicant must have had the same

effect, although it did not regard the number of such steps as

excessive.

On the other hand, it drew up a list of seven periods of inactivity

totalling approximately eleven months: from 19 February (launching

of the inquiry into offences committed in Switzerland) to

30 April 1985 (questioning of the applicant), from 24 June (letter

from the investigating judge to a German bank) to 24 September 1985

(extension of the investigation), from 19 November 1985 (decision

allowing the prosecuting authorities' request for further

inquiries) to 2 January 1986 (questioning of Mr Toth), from

22 January (final interrogation of the applicant) to

26 February 1986 (conclusion of the preliminary investigation),

from 11 June (adjournment of the trial hearing) to 24 July 1986

(request for information from the Vienna Regional Court), from

18 August (receipt of a German judicial decision) to

22 September 1986 (despatch of two letters rogatory) and from

8 October (filing of report by a court expert on a co-accused) to

12 November 1986 (when Mr Toth dispensed with the services of the

lawyer appointed to act for him) (see paragraphs 18-20, 23-35 and

41-46 above).

Even the tasks normally connected with such proceedings and not

listed in the documents of the proceedings - such as studying of

the papers, preparation of examinations, drawing up of official

requests for information and so on - did not, in the Commission's

view, excuse all the delays noted in the present case. In short,

the proceedings had not been conducted with due expedition.

77. The Court fully appreciates that the right of an accused in

detention to have his case examined with particular expedition must

not unduly hinder the efforts of the judicial authorities to carry

out their tasks with proper care (see, mutatis mutandis, the

Wemhoff judgment of 27 June 1968, Series A no. 7, p. 26, para. 17).

However, the evidence discloses that the Austrian courts did not in

this instance act with all the necessary dispatch.

The length of the proceedings - as far as relevant in the present

context - would in fact seem essentially not to be attributable

either to the complexity of the case or to the applicant's conduct.

Although the offences of which Mr Toth was accused were numerous

and concerned several countries, they were relatively commonplace

and repetitive. As far as his appeals were concerned, some were

bound to fail from the outset, such as that of 9 July 1985 to the

Supreme Court and that of 26 September 1985 to the Constitutional

Court (see paragraphs 24 and 29 above); however, they scarcely

slowed down the examination of the case.

On the other hand, the speed of the investigation suffered

considerably from the transmission of the whole file to the

relevant court not only on the occasion of each application for

release and each appeal by Mr Toth, but also on that of each

request from the investigating judge or public prosecutor for the

extension of the detention. There were therefore numerous

interruptions because the officers concerned relinquished the file,

sometimes for quite long periods, to their colleagues (see

paragraphs 20, 24, 28, 31, 39, 43-44, 46 and 48 above). Preferred

to the use of copies, which is the practice in other member States

of the Council of Europe, such toing and froing of the file

occurred both before the indictment and after it (see, mutatis

mutandis, the König judgment of 28 June 1978, Series A no. 27,

p. 36, para. 104). As in practice it had the effect of suspending

the investigation during the examination of the question whether

the detention should be continued and, consequently, of delaying

the applicant's release accordingly, it can hardly be reconciled

with the importance attached to the right to liberty secured under

Article 5 para. 1 (art. 5-1) of the Convention.

78. In conclusion, there has been a violation of

Article 5 para. 3 (art. 5-3).

II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4)

79. The applicant also relied on Article 5 para. 4 (art. 5-4),

according to which:

"Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a

court and his release ordered if the detention is not lawful."

In his submission, the proceedings before the Linz Court of Appeal

had not been adversarial either when it ruled on his applications

for release or when it authorised the extension of his pre-trial

detention.

A. Proceedings concerning the applications for release

1. Government's preliminary objection

80. The Austrian Government raised a preliminary objection in that

Mr Toth had not formulated before the Commission, within the

six-month period provided for in Article 26 (art. 26) in fine of

the Convention, any complaint concerning his absence and that of

his lawyer during the examination of his appeals against the

dismissal of his applications for release by the Salzburg Regional

Court.

They relied in this respect on the letters which Mr Toth sent to

the Secretariat on 5 and 26 December 1985, then on 4 July and

11 December 1986, to supplement his initial application of

12 October 1985. The first two letters concerned the decisions of

the Court of Appeal, of 19 June and 11 December 1985, in respect of

the extension of the detention. The third and fourth dealt with

its length. Mr Toth, who was assisted by a lawyer throughout the

domestic proceedings, must have been aware both of the

participation of a member of the public prosecutor's office in the

hearings on the applications for release and of the differences

between the two categories of proceedings at issue.

81. At the hearing the Delegate of the Commission invited the

Court to reconsider its case-law concerning its jurisdiction to

hear such preliminary submissions.

In addition, he made two observations, reiterating in substance the

relevant passages of the decision of 8 May 1989 on the

admissibility of the application. In the first place, as early as

5 December 1985, Mr Toth complained that he had been unable to

participate in the hearing before the Court of Appeal on the

extension of his detention; subsequently, in his letter of

4 July 1986 after the Court of Appeal had on 22 January 1986 for

the first time dismissed upon appeal his request to be released

from detention he wrote that he now extended the scope of his

application. This approach led the Commission to conclude not that

he was dealing separately with two different types of proceedings

before the Court of Appeal, but that he also complained of his not

having been heard when his appeal was before the Court of Appeal.

Furthermore, the letters of 5 December 1985 and 4 July 1986 must be

viewed as a whole; and the latter was sent less than six months

after 22 January 1986, the date on which the Court of Appeal ruled

for the first time on an appeal by Mr Toth on his request to be

released from detention (see paragraph 33 above).

82. In the light of its own case-law (see, in particular, the

Ringeisen judgment of 16 July 1971 Series A no. 13, pp. 37-38,

para. 90, the Guzzardi judgment of 6 November 1980, Series A

no. 39, pp. 22-23, paras. 62-63, and the Foti and Others judgment

of 10 December 1982, Series A no. 56, p. 15, para. 44) and of all

the evidence, the Court agrees with this conclusion. In

particular, it considers it hardly realistic to expect a detainee

without legal training - like the applicant - to understand fully

the difference between the two types of procedure in question; it

would have been excessively formalistic of the Commission to have

confined itself to the letter of the applicant's argument without

seeking to establish its true purport. The objection is therefore

unfounded.

2. The merits of the complaint

83. The Linz Court of Appeal ruled on Mr Toth's appeals without

having summoned or heard him or his lawyer, whereas an official of

the principal public prosecutor's office had attended the hearing

and been able to reply to the court's questions.

According to the applicant, that destroyed the equality of arms

between the prosecution and the defence.

The Government took the contrary view. In their opinion, the fact

that the applicant had appeared before the Ratskammer of the

Salzburg Regional Court rendered devoid of purpose his presence on

appeal. Furthermore, the representative of the prosecuting

authority had not made any statements or requests.

84. The Court observes that Article 5 para. 4 (art. 5-4) does not

compel the Contracting States to set up a second level of

jurisdiction for the examination of applications for release from

detention. Nevertheless, a State which institutes such a system

must in principle accord to the detainees the same guarantees on

appeal as at first instance (see, inter alia, mutatis mutandis, the

Delcourt judgment of 17 January 1970, Series A no. 11, p. 14,

para. 25 in fine, and the Ekbatani judgment of 26 May 1988,

Series A no. 134, p. 12, para. 24).

In fact Mr Toth did not have the opportunity to contest properly

the reasons invoked to justify the continuation of his detention.

Any questions by the Court of Appeal would have enabled the

representative of the prosecuting authority to put forward his

views; they could have prompted, on the part of the accused,

reactions warranting consideration by the members of the court

before they reached their decision. As the proceedings did not

ensure equal treatment, they were not truly adversarial (see,

mutatis mutandis, the Sanchez-Reisse judgment of 21 October 1986,

Series A no. 107, p. 19, para. 51).

There has therefore been a violation of Article 5 para. 4

(art. 5-4) on this point.

B. Proceedings concerning the extension of the pre-trial

detention

85. The applicant made a similar complaint concerning the

proceedings instituted in the Linz Court of Appeal by the

investigating judge for the extension of the pre-trial detention.

86. In the Commission's view, shared by the Government, the

contested proceedings did not come within the scope of

Article 5 para. 4 (art. 5-4). Their purpose was to fix a maximum

period of detention and they were separate from, and in addition

to, the "proceedings" which Mr Toth was entitled to take under that

provision and of which he availed himself repeatedly in order to

request his release.

87. The Court reaches the same conclusion. The appellate court

rules on a request from the investigating judge or the prosecuting

authority (see paragraph 59 above) and confines itself to setting

out a framework within which the former is free to take decisions.

It does not therefore itself decide - as it has to in the case of

an appeal or for the purposes of the automatic periodic review - on

the appropriateness or the necessity of keeping the accused in

prison or releasing him, because it does not substitute its own

assessment for that of the authority which has taken the decision.

Nor does it undertake a review of the "lawfulness of the

detention", in other words a review wide enough to bear on each of

those conditions which are essential for detention to be lawful

(see, mutatis mutandis, the E. v. Norway judgment of

29 August 1990, Series A no. 181-A, p. 21, para. 50).

In short, Article 5 para. 4 (art. 5-4) did not apply to the

proceedings in question.

III. APPLICATION OF ARTICLE 50 (art. 50)

88. According to Article 50 (art. 50):

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Damage

89. Mr Toth claimed in the first place 750,000 Austrian schillings

for pecuniary damage and 1,000,000 schillings for non-pecuniary

damage. The first amount was said to correspond to his loss of

earnings during the pre-trial detention and the reduction in his

salary after his release. The second was intended to cover the

"mental suffering" endured in prison (at a rate of 1,000 schillings

per day) and subsequently on his re-integration into society.

90. The Government saw no causal connection between the alleged

violation and the pecuniary damage deriving for the applicant from

his deprivation of liberty, which he would in any event have had to

undergo once convicted. In addition, they considered that a

finding of a violation would provide sufficient satisfaction for

the non-pecuniary damage.

The Delegate of the Commission did not submit any observations.

91. The Court dismisses the claim for pecuniary damage because the

entire period of pre-trial detention was deducted from the

sentence. As regards the non-pecuniary damage, it finds that the

present judgment constitutes sufficient satisfaction.

B. Costs and expenses

92. The applicant received legal aid before the Convention organs

and claimed nothing in respect of the proceedings conducted before

them.

On the other hand, he sought 178,083.60 schillings for the costs

and expenses incurred in the proceedings in the Austrian courts

comprising the following lawyers' fees: Mr Eberl and Mr Müller:

440; Mr Oberrauch and Mr Stadlmeier: 11,132; Mr Paradeiser:

31,438.20; Mr Lechenauer: 50,000; Mrs Hermann: 85,073.40.

93. The Government contested most of these claims. Neither

Mr Eberl and Mr Müller nor Mr Oberrauch and Mr Stadlmeier had

represented Mr Toth, although the latter's sister had contacted

them. Mr Paradeiser was entitled only to 7,853.40 schillings, for

the application for release of 15 February 1985 and the hearing of

27 February in the Ratskammer of the Salzburg Regional Court (see

paragraphs 17 and 19 above). As regards Mr Lechenauer, no details

had been provided. Finally, Mrs Hermann was not to be taken into

account because she began to represent the applicant only after his

conviction.

The Delegate of the Commission did not express an opinion.

94. The Court agrees with the view expressed by the Government and

accordigly awards to Mr Toth 7,853.40 schillings for the expenses

and fees of Mr Paradeiser.

FOR THESE REASONS, THE COURT

1. Holds unanimously that there has been a violation of

Article 5 para. 3 (art. 5-3);

2. Dismisses 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;

3. Holds by eight votes to one that there has been a violation of

Article 5 para. 4 (art. 5-4) inasmuch as those proceedings were not

adversarial;

4. Holds by eight votes to one that Article 5 para. 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;

5. Holds unanimously that the respondent State is to pay to the

applicant, within three months, 7,853.40 schillings (seven thousand

eight hundred and fifty three Austrian schillings and forty

groschen) in respect of costs and expenses;

6. Dismisses unanimously the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 12 December 1991.

Signed: For the President

Alphonse SPIELMANN

Judge

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention

and Rule 53 para. 2 of the Rules of Court, the separate opinions of

Mr Matscher and Sir Vincent Evans are annexed to this judgment.

Initialled: A. S.

Initialled: M.-A. E.

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

1. I voted with the majority of the Chamber as regards the

excessive duration of the applicant's pre-trial detention, although

it was in my view a borderline case. I too consider that on the

whole, for a case involving a moderately serious criminal offence,

an overall period of detention which exceeds two years does not

satisfy the requirements of "expedition" laid down in

Article 5 para. 3 (art. 5-3).

However, the Chamber did not take sufficient account of the fact

that where economic crime is concerned the investigation is

especially intricate and complex and that, in the present case, the

accused in no way helped to shed light on the facts constituting

the allegations against him, as is clear from his attitude during

the two hearings before the Salzburg Regional Court; it may be

supposed that he behaved similarly during the investigation. In

this way he rendered the investigating judge's task more difficult.

Clearly he was free to choose his line of defence, but, to a

certain extent, he must equally suffer the unfavourable

consequences resulting therefrom. At the same time, the judge must

carry out the investigation with the diligence required under

Article 5 para. 3 (art. 5-3), notwithstanding the accused's

conduct.

The accused is also entitled to have recourse to all the legal

remedies available under the applicable procedural law with a view

to obtaining his release, but clearly this this too may lead to a

prolongation of the detention, for reasons "of a technical nature"

(non-availability of the file for the investigating judge), and the

accused must bear this in mind; this is particularly true where he

files numerous appeals, some of which are patently destined to

fail. Nevertheless, here too, the competent court must deal with

such a situation by the means at its disposal and must not forget

that the right to liberty of person lies at the heart of the

Convention, as the Chamber has rightly confirmed (paragraph 77 in

fine).

In this context the suggestion that the European Court would seem

to formulate for the benefit of national courts (also at the third

sub-paragraph of paragraph 77), namely that they should make copies

of the files - which sometimes comprise more than

1,000 pages -, so as always to leave a copy for the investigating

judge, is in my view hardly realistic; such a suggestion goes well

beyond what can reasonably be expected of the courts of a State

signatory to the Convention; moreover, it disregards the problems

arising from the handling of a large file.

2. The majority of the Chamber found that there had been a

violation of Article 5 para. 4 (art. 5-4) on the ground that the

decision of the Court of Appeal on the accused's applications for

release, following their dismissal both by the investigating judge

and the Ratskammer, had been taken by that court after having heard

the submissions of the principal public prosecutor's office, but

without hearing the accused.

The Court has often in the past had to consider the problem of the

procedural guarantees secured by Article 5 para. 4 (art. 5-4). Its

case-law on this matter may be summarised as follows:

Article 5 para. 4 (art. 5-4) requires that it be possible to apply

to a judge, who can decide on the application for release following

a judicial type procedure, with the essential procedural guarantees

inherent in that notion (see the judgments of Neumeister of

27 June 1968, Series A no. 8, p. 43, para. 24; Sanchez-Reisse of 21

October 1986, Series A no. 107, p. 19, para. 51; and Lamy of

30 March 1989, Series A no. 151, pp. 16-17, para. 29); however,

that is clearly below the level of protection afforded - and

required - by Article 6 para. 1 (art. 6-1).

It seems to me that Austrian law does indeed provide the guarantees

which - in the light of the relevant case-law of the Convention

organs - Article 5 para. 4 (art. 5-4) requires (Articles 195 and

196 of the Code of Criminal Procedure). Apart from the automatic

periodical reviews of the lawfulness of the continuation of

detention on remand (Article 194 para. 3 of the Code of Criminal

Procedure), the detainee may, at any time, request his release,

which may be granted by the investigating judge with the consent of

the prosecuting authority. Where the investigating judge rejects

such a request or the prosecuting authority opposes it, an

adversarial hearing is held before the Ratskammer to which the

detainee (and his lawyer) and the public prosecutor are summoned

and where the detainee and/or his lawyer have the possibility to

make any submissions in support of the application for release, in

other words to contest the investigating judge's decision to reject

the application and/or the position taken by the public prosecutor.

Where the decision of the Ratskammer goes against him, the detainee

has in addition the right to submit a written appeal to the Court

of Appeal. That court decides "after hearing the submissions of

the principal public prosecutor's office", in other words after

having given him the opportunity to make known - in writing or

orally - his point of view. Furthermore, where the appeal (against

a decision by the Ratskammer to release a detainee) has been lodged

by the prosecuting authority, the detainee too has the possibility

of putting forward his submissions provided that the prosecution

submissions have been sufficiently brought to his notice - as the

Court correctly noted in the Brandstetter judgment of

28 August 1991, Series A no. 211, pp. 27-28, para. 67 (see

nevertheless my dissenting opinion, which was joined by

Judges Vilhjálmsson and Bindschedler-Robert). Thus both parties

have each had the opportunity to put forward their arguments so

that the equality of arms is here fully respected.

Of course, over recent years, the Court's case-law on the matter of

procedural guarantees has developed and, in the present case, the

Chamber seems to have let itself be influenced by the idea that, in

criminal proceedings, it is always the accused who must have the

last word. This is a requirement of Article 6 para. 1 (art. 6-1)

to which I fully subscribe. However, to transpose it to

Article 5 para. 4 (art. 5-4) is in substance to give that provision

an equal scope to that of Article 6 para. 1 (art. 6-1) (without the

requirement concerning the public nature of hearings), which, in my

view is not a reasonable interpretation of Article 5 para. 4

(art. 5-4). In fact the Convention distinguishes clearly between

Article 5 para. 4 and Article 6 para. 1 (art. 5-4, art. 6-1) as

regards the procedural guarantees inherent in one or the other

(see in this respect the Winterwerp judgment of 24 October 1979,

Series A. no. 33, p. 24, para. 60).

The undesirable consequence of such case-law could be that, in

proceedings for hearing applications for release, States will

abolish the second (or third) level of jurisdiction which certain

systems (in this instance, the Austrian) make available, where the

procedures at the higher levels of jurisdiction do not fully

satisfy the requirements of Article 6 para. 1 (art. 6-1). Such a

legislative reversal would be in conformity with the letter of

Article 5 para. 4 (art. 5-4), but would not be in the interests of

the citizen.

Furthermore, the organisation of an appeal procedure in conformity

with Article 6 para. 1 (art. 6-1), in cases of this nature, would

constitute an excessive burden for the investigation and would run

counter to the principle of "expedition" laid down in

Article 5 para. 3 (art. 5-3).

PARTLY DISSENTING OPINION OF JUDGE Sir Vincent EVANS

1. I regret that I cannot agree with the conclusion of the

majority of the Court that Article 5 para. 4 (art. 5-4) of the

Convention did not apply to the proceedings concerning the

extension of the pre-trial detention (see paragraphs 85-87 of the

Court's judgment) and in my opinion those proceedings also gave

rise to a violation of that paragraph of Article 5 (art. 5-4).

2. The purpose of the proceedings in question, as the Court

observes, was to obtain a ruling of the Court of Appeal on a

request from the investigating judge under Article 193 of the

Austrian Code of Criminal Procedure for a prolongation of the

permissible length of detention on remand and thereby to set the

framework within which the investigating judge was then free,

within the law, to take decisions as to the continued detention of

the applicant. The effect of the proceedings was thus to make a

decision as to an essential pre-condition, under Austrian law, of

his continued detention. This being so, Article 5 para. 4

(art. 5-4) required that the applicant should be entitled to take

proceedings to contest the "lawfulness" of his continued detention

in this respect. But at no stage was this requirement satisfied.

The applicant was not entitled to intervene in the proceedings

before the Court of Appeal and to present his case for opposing the

investigating judge's request and he had no right of appeal against

the Court of Appeal's ruling.

3. It is true that the applicant was able to, and did, take

separate proceedings under Article 194 para. 2 of the Code of

Criminal Procedure to apply for his release but, as I understand

the system, such application had to be made within the framework

already established by the Court of Appeal's prolongation decision

under Article 193 and that decision as such was not open to

challenge in the proceedings concerning the application for

release. What is more, it is apparent that the Court of Appeal in

reaching its decision on prolongation took into account not only

the complexity and scope of the case and the severity of the

sentence risked but also other considerations including the danger

of the accused absconding and committing new offences (see

paragraphs 22, 26, 30 and 38 of the Court's judgment). The

decision so arrived at could hardly fail to weigh against the

applicant in the consideration of the merits of any application for

release thereupon to the Ratskammer and in any ensuing appeal to

the Court of Appeal. These considerations reinforce the view that

Article 5 para. 4 (art. 5-4) was applicable in respect of the

prolongation proceedings.

4. My conclusion therefore is that Article 5 para. 4 (art. 5-4)

was applicable and was violated not only in regard to the

proceedings concerning the applications for release but also in

regard to the proceedings concerning the extension of the pre-trial

detention.