EHRM, 25-01-2007, nr. 26186/02

The applicant was born in 1943 and is currently living in Germany.

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. 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.

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 until then 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 in the criminal case against the applicant. 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 the 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 disproportionate 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, had contacts abroad and 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 his precarious financial situation had worsened. The court found that the length of the detention until now was not disproportionate to the sentence which the applicant risked incurring. 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 the 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 the 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. The Regional Court convicted the applicant on the latter date of professional crimes under the Drugs Act, explained the judgment orally and sentenced the applicant to twelve 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.

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.

Under Article 180 §§ 1 and 2 of the Code of Criminal Procedure (Strafprozeßordnung) 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. Article 180 § 5 provides other more lenient measures such as the concerned person's solemn promise not to abscond, the court's instruction to stay at a certain place or to notify any change of address, the provisional withdrawal of travel documents or the setting of a bail. According to § 6 the concerned judge has to order pre-trial detention if the purpose of this detention can not be achieved by more lenient measures.

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).

The applicant complained that his pre-trial detention had been unjustified and unreasonably long. He invoked Article 5 §§ 1 and 3 of the Convention. The Court finds that the applicant's complaint should be considered under Article 5 § 3 of the Convention, which reads as follows: