SONNLEITNER v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant is an Austrian national, born in 1939 and living in Köflach. She is represented before the Court by Mr Peter Bartl, a lawyer practising in Graz. A. On 12 and 13 December 1989 criminal proceedings were opened against the applicant and her husband, H.S., respectively, on suspicion of their having brought into circulation large amounts of narcotic drugs (Inverkehrsetzen grosser Mengen Suchtgift). On 13 August 1990 the investigating judge discontinued the proceedings against the applicant. He noted that the applicant had denied being involved in any criminal act. As H.S. had availed himself of the right not to give evidence against his wife (Zeugenentschlagungsrecht), it was unlikely that the applicant’s defence would be disproved. On 6 March 1991 the Munich Regional Court convicted H.S. amongst others of the above charges. In its reasoning, the court, referring to statements made by H.S., noted several times that the applicant had contributed to the commission of the offence at issue. Having regard to the above judgment, the Graz Public Prosecutor’s Office (Staatsanwaltschaft) requested the re-opening of the proceedings against the applicant on 8 January 1992. The Public Prosecutor’s Office noted that H.S. had previously availed himself of the right not to give evidence against his wife. His statements in the proceedings before the Munich Regional Court therefore constituted new evidence. On 11 March 1992 the Review Chamber (Ratskammer) of the Graz Regional Criminal Court (Landesgericht für Strafsachen) granted the re-opening request. On 24 July 1992 the applicant was arrested. Subsequently, the investigating judge ordered her detention on remand, finding that there was a suspicion of her having committed the above offence, as well as a danger of absconding. On 6 August 1992 she was released on bail. On 29 October 1992 the Graz Court of Appeal (Oberlandesgericht) quashed the order to re-open the proceedings and referred the case back to the Graz Regional Criminal Court. It found that the latter should have carried out further investigations into the precise contents of H.S.’s statements before the Munich Regional Court. On 16 February 1994 the Review Chamber of the Graz Regional Court again decided to re-open the proceedings. The applicant’s appeal against this decision was dismissed by the Graz Court of Appeal on 13 April 1994. She was finally acquitted on 31 August 1995. On 12 September 1995 the applicant filed an action claiming compensation for unlawful detention under section 2 § 1 (a) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz). She argued that her detention between 24 July 1992 and 6 August 1992 had been unlawful as she had been arrested before the order to re-open the criminal proceedings had become final. On 19 December 1995 the Graz Court of Appeal granted the applicant’s action, finding that she was entitled to compensation. It held that, as a general rule, arrest and detention of a suspect could lawfully be ordered even before the re-opening order became final as the appeal against it had no suspensive effect. The investigating judge was bound by the order to reopen the proceedings. Furthermore, the Court of Appeal noted that, at the time the applicant’s detention was ordered, there was a reasonable suspicion against her as H.S. had incriminated her in the proceedings before the Munich Regional Court. Having regard to the sentence she risked incurring, namely one to fifteen years’ imprisonment, and to the fact that she was unemployed at that time and not well integrated in society, the court also found that at that time a danger of absconding had properly been assumed by the investigating judge. However, it followed from the decision of 29 October 1992 that the order to re-open the proceedings had been premature and therefore unlawful. The court accordingly concluded that the applicant’s detention, being based on that defective order, had likewise been unlawful. On 18 April 1996 the Supreme Court (Oberster Gerichtshof) allowed the appeal of the Public Prosecutor’s Office and dismissed the applicant’s action. It noted that the order to re-open proceedings which had been discontinued meant that they were resumed at the stage of the preliminary investigation. The re-opening order served as a legal basis for the continuation of the proceedings and also for the suspect’s arrest and detention, even before it became final, as the appeal against it did not have suspensive effect. The investigating judge was bound by that order and had no competence to review its lawfulness. The fact that, in the present case, the order had later been quashed by the appellate court did not retrospectively render unlawful the applicant’s detention, which had duly been based on a reasonable suspicion and the danger of absconding. The decision was served on 22 May 1996. B. Relevant domestic law The relevant provisions of the Code of Criminal Procedure (Strafprozessordnung), in the version in force in 1992, provided as follows: According to section 352, the Review Chamber of the competent criminal court could, upon the Public Prosecutor’s request, re-open proceedings against a specific suspect which had been discontinued, if criminal liability for the offence had not become statute-barred and new evidence was adduced which appeared likely to lead to the suspect’s conviction (paragraph 1). An appeal against the Review Chamber’s decision could be lodged with the Court of Appeal (paragraph 2). As section 352 was silent on the question whether or not such an appeal had suspensive effect, the general rule laid down in section 114 § 2 applied, namely that an appeal against the decision of the Review Chamber had no suspensive effect.