FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26186/02 
by Heinz-Dieter HESSE 
against Austria

The European Court of Human Rights (First Section), sitting on 8 June 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mrs F. Tulkens
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges 
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 30 June 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Heinz-Dieter Hesse, is a German national who was born in 1943 and is currently detained in Germany. He was represented before the Court by Mrs C. Lanschützer, a lawyer practising in Graz. The respondent Government were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The German Government did not make use of their right to intervene under Article 36 of the Convention.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 26 April 1999 Mr K was arrested in Sweden while in possession of a bag containing approximately 10 kilograms of heroin. When questioned by the Swedish authorities, Mr K said that he had been unaware of the contents of the bag, which the applicant had requested him to transport to Norway. He had thought that the bag contained gold and jewellery. In the subsequent proceedings he also admitted that he had already travelled to Norway some weeks previously under the same conditions. He had then also transported a bag, which, after several telephone conversations with the applicant and another person, Mr P, he had finally handed over to someone, who had given him money. He estimated that this bag weighed some 4-5 kg but he was not sure.

Meanwhile, on 28 April 1999 the applicant was arrested in Austria on suspicion of having committed offences under the Drug Offences Act (Suchtgiftgesetz) and, on 1 May 1999, placed in pre-trial detention (Untersuchungshaft). The Graz Regional Court (Landesgericht) found that there was a danger that the applicant would commit further offences of the same kind (Tatbegehungsgefahr) and that there was risk of collusion (Verdunkelungsgefahr).

When questioned, the applicant said that in March 1999 an officer of the Slovenian border police, Mr P, had asked him to transport an unidentified object to Norway on behalf of Albanian friends. He had arranged that Mr K, his former sales representative for his spectacles business, would provide this service. He had twice received a bag from Mr P, the first one weighing between 8 and 10 kg and the second one between 10 and 12 kg. The applicant had made the bag available at his store and Mr K had picked it up. He had not been aware of the contents of the bag. As Mr K had run out of money, he had transferred funds to him in Norway. The second journey had taken a similar course. He had assumed that the items were weapons or explosives.

On 1 May 1999 the Graz Regional Court opened a criminal investigation in respect of the applicant.

On 12 May 1999 the Regional Court held a hearing regarding the applicant’s pre-trial detention and ordered its continuation. In addition to the reasons given on 1 May 1999, it referred to the risk of the applicant’s absconding (Fluchtgefahr). On 4 June 1999 the Graz Court of Appeal (Oberlandesgericht) upheld that decision.

Meanwhile, on 14 May 1999, the investigating judge requested the Swedish authorities, under arrangements for judicial mutual assistance, to question Mr K. Mr K was questioned between 15 and 16 June 1999 in the presence of the applicant’s counsel and the investigating judge. He stated inter alia that the applicant ought to have noticed the drug parcels in the bag as he had requested Mr K to provide clothes and had subsequently put them into the bag.

Subsequently, further criminal investigations were conducted relating to the telephone communications between the applicant, Mr K and Mr P and the money transfers between them, the latter requiring the disclosure of bank accounts.

In the meantime, on 2 June 1999, Mr P was arrested in Austria.

On 12 July 1999 the Regional Court, having held a hearing regarding the matter, continued the applicant’s detention on remand.

On 24 August 1999 interviews were conducted in Austria in the presence of the Swedish authorities under arrangements for judicial mutual assistance.

On 13 September 1999 the Regional Court continued the applicant’s detention. The Court of Appeal dismissed a complaint by the applicant on 28 September 1999.

At the end of November 1999 the Slovenian authorities provided an analysis of the data concerning the telephone conversations. The criminal investigations were subsequently extended to Croatia.

On 26 November 1999 and 26 January 2000 the applicant’s pre-trial detention was prolonged.

In January 2000 the Swedish Court of Appeal gave judgment sentencing Mr K to 10 years’ imprisonment.

On 27 March, 29 May and 21 July 2000 the Regional Court ordered the continuation of the applicant’s detention.

Meanwhile, on 18 May 2000, the Graz Public Prosecutor’s Office (Staatsanwaltschaft) drew up a bill of indictment charging the applicant with incitement to large-scale drug trafficking.

On 20 September 2000 Mr P committed suicide. He had always denied everything.

On the same day and on 27 September 2000 the Graz Regional Criminal Court, sitting as a chamber composed of two professional judges and two lay judges (Schöffengericht), held hearings. It heard evidence from the applicant and several other witnesses. It then adjourned in order to hear evidence from Mr K,  who was detained in Sweden but had requested to serve his sentence in Austria. The presiding judge therefore assumed that evidence could be heard from Mr K at trial in Austria.

However, at the end of February 2001 the Federal Ministry of Justice (Justizministerium) was informed by a letter from the Swedish authorities that Mr K had unexpectedly withdrawn his request. The Regional Court was informed about this at the end of March 2001, when the letter had been translated into German.

On 15 May 2001 the Graz Regional Court dismissed the applicant’s request for release and ordered the continuation of his pre-trial detention. It noted that there was a risk that the applicant would abscond as he was in a precarious financial situation, had contacts abroad and was facing the possibility of a severe sentence. It further noted that the applicant had presumably acted in the context of organised crime and was, therefore, likely to abscond for reasons of security. It noted in this regard that the applicant’s accomplice Mr P had committed suicide in order to avoid responsibility towards the organisation behind the crime and that the organisation had lost considerable assets through the applicant’s intervention. It found that the applicant’s family bonds were of no relevance in this regard. It also found that there were motives for the applicant to carry out further offences of the kind he was suspected of and referred in this regard to the fact that the applicant was charged with professional (gewerbsmäßige) crimes. It noted finally that the case was complicated as it was now indispensable for the court to travel to Sweden in order to hear evidence from Mr K.

The applicant appealed on the ground that there was insufficient evidence against him and that his detention was proportionate to the sentence he might incur. He argued that he had helped find Mr P, had confessed and had no previous criminal record. He further contested that there was any risk of absconding and submitted in this regard that he was socially integrated in Austria, as his wife and two infant children were living there, and that he did not dispose of any financial means. In any event the authorities could prevent his absconding by other means, such as taking his solemn promise or confiscating his passport. He referred finally to the length of the proceedings and submitted that the Swedish proceedings against Mr K were already finished.

On 21 June 2001 the Graz Court of Appeal dismissed the applicant’s appeal. It noted that there was a reasonable suspicion against the applicant, based on the evidence given by Mr K. Noting in particular that the applicant was now substantially less socially integrated on account of the offence with which he was charged, that he was of German nationality and had contacts abroad and that he was liable to a sentence of up to fifteen years’ imprisonment, it confirmed that there was a risk of absconding. It further found that there was a risk that the applicant would carry out further offences of the same kind and referred in this regard to the professional manner in which the smuggling of the heroin had been carried out. It observed that the applicant had acted in the context of an international criminal organisation and that since then his precarious financial situation had worsened. The court found that the length of the detention until now was not disproportionate to the sentence to which the applicant was liable. The applicant’s further detention was justified on condition that further hearings were held as soon as possible. As to the adjournment of the trial, it noted that the Regional Court had first legitimately assumed that Mr K could soon give evidence at trial in Austria.

On 30 July 2001 the applicant, invoking Article 5 §§ 1 and 3 of the Convention and referring to the case Clooth v. Belgium (judgment of 12 December 1991, Series A no. 225) lodged a fundamental-rights complaint (Grundrechtsbeschwerde) with the Supreme Court (Oberster Gerichtshof).

On 25 October 2001 the Supreme Court gave judgment (served on 4 December 2001) dismissing this complaint and upholding the Court of Appeal’s findings.

Meanwhile, on 1 August 2001 the Graz Regional Court dismissed a further request by the applicant for release. It noted that the criminal proceedings were likely to end soon as the parties had agreed that Mr K’s statements at the hearing in Sweden could be read out at trial. On 21 August 2001 the Court of Appeal upheld that decision.

On the same day and on 23 August 2001 it held further hearings. Evidence was heard from the applicant again. He stated that Mr P had offered him 100,000 Austrian schillings (approximately EUR 7,300) for the first trip. Mr K had then transported the bag to Norway and had telephoned him several times, complaining that he was running out of money and that the people who were supposed to meet him had not appeared yet. The applicant had then transferred money to Mr K. After the trip Mr K had told him that he had in fact met somebody to whom he had handed over the bag. The applicant further stated that Mr P had paid him and Mr K 4,000 Deutschmarks (approximately EUR 2,000) for the second trip. The applicant maintained that he had been unaware of the contents of the bags.

The Regional Court convicted the applicant on the later date of professional crimes under the Drugs Act, explained the judgment orally and sentenced the applicant to 12 years’ imprisonment (from which the period of pre-trial detention was deductible). In the written version of the judgment, which was served on the applicant’s counsel on 15 January 2002, the court held that the applicant had twice retained Mr K to transport drugs to Norway, once approximately 10 kilograms of heroin and once an undetermined but similar amount of heroin. Both journeys had been covered and supervised by further backers of the international drugs organisation. Having regard to the circumstances of Mr K’s first journey, the court also found that this trip had been carried out in order to smuggle drugs and had not been a dry run. The court noted in this regard that Mr K had then travelled with a bag weighing approximately as much as the bag used on the second journey and that a high fee had been promised and paid for this transport. It further noted that Mr K had remained in Norway for some time and had met somebody who had taken the bag and had handed money over to him. Referring to the evidence given by a specialised police officer, the court noted that the fee promised for this journey corresponded to the sums paid for the transport of drugs in the respective circles, and that such a sum was not paid, for instance, for the transport of weapons. The court did not believe the applicant’s argument that he had been unaware of the contents of the bags. It noted in particular that the applicant had received substantial payments for the smuggling of the bags, had kept the bags each time for a while and had pushed Mr K to leave with them as soon as possible.

The court relied further on recorded telephone conversations between the applicant and Mr K and between Mr P and Mr K during his first journey and the evidence given by the specialised police officer who had stated that the present circumstances of smuggling and recruitment of mules resembled the approach typically adopted by international drug-trafficking organisations.

Upon a further request for release by the applicant, the Regional Court prolonged the applicant’s pre-trial detention. On 6 February 2002 the Graz Court of Appeal upheld that decision. The applicant subsequently lodged a fundamental-rights complaint with the Supreme Court in which he complained about the length of his detention, referring, inter alia, to alleged delays in the proceedings before his conviction.

On 4 April 2002 the Supreme Court dismissed the complaint. On the same day it rejected the applicant’s plea of nullity.

On 29 May 2002 the Graz Court of Appeal (Oberlandesgericht) allowed the applicant’s appeal in part and reduced his sentence to ten years’ imprisonment.

Upon the applicant’s request, he was transferred to Germany where he is currently serving his sentence.

B.  Relevant domestic law

Under Article 180 §§ 1 and 2 of the Code of Criminal Procedure (Strafprozeβordnung) a person can be held in pre-trial detention inter alia if he is strongly suspected of having committed a criminal offence and there is a risk that he will abscond or reoffend.

Under Articles 181 and 182 pre-trial detention can initially only be ordered for fourteen days, extendable initially for one month and subsequently extendable repeatedly for two-month periods until the first hearing in the case. From that date onwards a decision ordering pre-trial detention is subject to no further time-limit. It is nevertheless open to the accused to submit an application for release at any time (Art. 193 § 5).

In any event, all authorities involved in the criminal proceedings are obliged to make efforts to keep the duration of the pre-trial detention as short as possible (Art. 193 § 1). An accused has to be released when the reasons for his detention no longer exist or the duration of his detention becomes unreasonably long (Art. 193 § 2)

Pre-trial detention may only then be extended beyond six months where this is inevitable in view of the reason for the arrest because of the special difficulties or complexity of the investigations (Art. 194 § 3).

Pre-trial detention comes to an end, at the latest, when the accused begins to serve his sentence, the duration of which is reduced by the time spent in pre-trial detention (Article 38 of the Criminal Code (Strafgesetzbuch).

Where an accused lodges an appeal that has statutory suspensive effect, for example, a plea of nullity (Art. 284 § 3) or an appeal against sentence (Art. 294 § 1), he remains in detention until the final decision (Art. 397).

COMPLAINTS

1. The applicant complained under Article 5 §§ 1 and 3 of the Convention that his pre-trial detention had been unjustified and unreasonably long.

2. The applicant further complained about the Regional Court’s assessment of the evidence and submitted that it had not duly considered his arguments. In particular, he complained that the court had assumed without proof that he had been aware of the contents of the bags he had requested Mr K to transport. He further complained about the court’s finding as to the contents of the first bag and the rejection of his argument that the first trip had been a dry run. He relied on Article 6 §§ 1 and 2 of the Convention.

THE LAW

1. The applicant complained under Article 5 §§ 1 and 3 of the Convention that his pre-trial detention had been unjustified and unreasonably long.

Article 5, as far as relevant, reads as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

3.  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 a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

The Government argued that the applicant’s pre-trial detention had been justified and not unreasonably long. They referred in that regard to the domestic courts’ reasons for the detention. They stressed that there had been a strong suspicion against the applicant, which had been corroborated in the course of the proceedings and had finally led to the applicant’s conviction. Furthermore, there had been a risk that the applicant would abscond because of his extremely precarious financial situation, loss of social integration, contacts abroad, foreign nationality and the impending severe sentence. The applicant’s accomplice had already escaped justice and the persons behind the criminal organisation by committing suicide. Moreover, the offence in question had been carried out repeatedly and professionally and the applicant’s precarious financial situation had worsened in the meantime. Therefore, there had been a danger that the applicant would commit offences of the same type, either in order to improve his financial situation or on account of the influence of the organisation behind the drug trafficking. Until the arrest of Mr P on 2 June 1999 there had also been the danger of collusion. The pre-trial detention had been proportionate to the seriousness of the offences. Having regard to the complexity of the preliminary investigations involving requests for mutual assistance from several European states, the voluminous file, the need for sufficient time for preparation for trial and the interest of obtaining Mr K’s direct evidence, which later turned out to be impossible, the length of the criminal proceedings also appeared reasonable. The applicant had not challenged the length of his pre-trial detention in the proceedings by filing a request that a time-limit be set under section 91 of the Courts Act. The Government referred finally to the relevant domestic legislation which guaranteed an effective remedy against and repeated examination of pre-trial detention and provided that the period of such detention was deducted from the sentence.

The applicant contested the Government’s submissions. He referred in particular to the fact that, in breach of the relevant domestic legislation, the written judgment had been drafted more than five months after pronouncement. He maintained that, for that reason alone, the length of the proceedings could not be regarded as reasonable. The applicant further argued that the proceedings should be considered as a whole and that pre-trial detention therefore lasted until final conviction. Thus, the guarantees under Article 5 should be extended to the proceedings after pronouncement of the judgment by the first-instance court.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complained about the Regional Court’s assessment of the evidence and submitted that it had not duly considered his arguments. In particular, he complained that the court had assumed without proof that he been aware of the contents of the bags he had requested Mr K to transport. He further complained about the court’s finding as to the contents of the first bag and the rejection of his argument that the first trip had been a dry run. He relied on Article 6 §§ 1 and 2 of the Convention.

The Court reiterates that, as a general rule, it is for the national courts to assess the evidence before them, while it is for the Court to ascertain that the proceedings considered as a whole were fair, which in the case of criminal proceedings includes the observance of the presumption of innocence. The presumption of innocence requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused Thus, the presumption of innocence will be infringed where the burden of proof is shifted from the prosecution to the defence (see Telfner v. Austria, no. 33501/96, § 15, 20 March 2001, with further references).

The Court finds that such was not the case here. The Regional Court convicted the applicant after adversarial proceedings on the basis of the evidence given by the applicant himself, his accomplice K. and a police officer specialised in drug matters, and set out in detail the reasons why it could not follow the applicant’s arguments. The Court, accordingly, finds that, in the exercise of its power of assessment of evidence, the Regional Court remained, within the limits set out by Article 6 § 2. Furthermore, the Court has not found any evidence which could lead to the conclusion that the proceedings were conducted contrary to the requirements of article 6 § 1 of the Convention. It follows that the applicant’s complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares admissible without prejudging the merits the applicant’s complaint under Article 5 §§ 1 and 3 of the Convention about his pre-trial detention.

Declares inadmissible the remainder of the application.

Søren Nielsen  Christos Rozakis  
 Registrar President

HESSE v. AUSTRIA DECISION


HESSE v. AUSTRIA DECISION