THE FACTS

The facts of the case may be summarised as follows:

The applicant is an Austrian citizen, born in 1930 and was when

submitting his application to the Commission detained in the Vienna

Prison hospital. He is now resident at Klagenfurt.

The application concerned three separate complaints namely (a) the

refusal of the Austrian authorities to grant compensation for the

applicant's detention on remand in Austria from .. November 1965 to ..

December 1969; (b) his conviction by the Vienna Regional Court of ..

April 1972; and (c) his detention on remand in Austria from .. April

1972 until .. December 1972.

Parts (a) and (b) of the application have been declared inadmissible

by the Commission's partial decision of 31 May 1973.

With regard to his complaints under Court above, the applicant stated

his case as follows:

The applicant was arrested on .. May 1971 under the suspicion of having

committed fraud. On .. August 1971 he was released on bail of 200,000

Austrian schillings (approximately 45,000 French francs). On .. April

1972, after his conviction by the Trial Court, the same Court decided

that the applicant should be detained on remand pending his appeal to

the Supreme Court. The Trial Court gave the following reasons for his

decision. At first it stated that the danger of the applicant's

absconding existed and reference was made to certain proceedings in

Wiener Neustadt in 1963 in the course of which the applicant had been

released on the condition that he reported regularly to the police and

the Trial Court. It is said that the applicant did not fulfil this

condition and disappeared under a false name in order to escape arrest.

The Court went on to say that the applicant had no really fixed abode

in Austria, since he changed his domicile continuously and did not

observe the general legal obligation to report any change of domicile

to the administration (Meldepflicht) and that he had indicated that his

permanent residence was Zurich, where his wife and his three children

lived.

It was also said that the overall part of the applicant's property was

situated in Switzerland and in Italy, and that his assets in Austria

were insignificant. The Court also stated that the applicant after his

release on bail in August 1971, made, with the consent of the Court,

several journeys abroad and was once arrested in Italy under the

suspicion of fraud. The Court also mentioned that the danger of flight

had increased as a consequence of the applicant's conviction and the

four years' sentence, and that bail of 200,000 Austrian schillings was

no longer sufficient to prevent the applicant from absconding.

On .. May 1972 the Vienna Court of Appeal (Oberlandesgericht) confirmed

on the applicant's appeal, the Lower Court's decision, for the same

reasons as set out in the Trial Court's decision.

On .. May 1972 the applicant requested his release from the Vienna

Regional Court. He stated that the danger of his flight did not exist,

and that the 1963 incident was the consequence of a mistake of the

Wiener Neustadt Court which had served the summons of the applicant to

the wrong lawyer, so that the former did not know that he was summoned

to appear in court. The applicant further indicated that he had always

in the past observed the conditions of his release, and that he had

regularly reported to the police. He then stressed his very bad state

of health and mentioned an expert opinion made by the Vienna Institute

for Forensic Medicine during his 1969 trial.  He also stated that he

had been, for almost three years, in detention on remand, and that,

consequently, he could expect that this would be considered when he

asked for a pardon. The applicant offered an increased bail of 250,000

Austrian schillings and to deposit his passport with the police. He

finally stated that his relations to foreign countries were limited to

Switzerland and Italy and that a flight into these two countries would

be senseless, since well applied extradition agreements existed between

these countries and Austria.

On .. June 1972 the Regional Court's Judges' Chamber (Ratskammer)

rejected the applicant's request. The Court held that the Appeals Court

had previously confirmed that the danger of the applicant's absconding

existed, and that the situation meanwhile had not changed.

On .. June 1972 the applicant appealed to the Court of Appeal. He

repeated the reasons of his request of .. May 1972. No details are,

however, submitted as to the decision of this Court.

On .. July 1972 the applicant again requested his release on bail, but

on .. October 1972 the above Judges' Chamber again refused to grant

this request. The Court referred to the danger of flight and then dealt

with the applicant's allegation that the continuing detention on remand

would cause serious and lasting injuries to his health. The Court said

that this allegation was unfounded in view of an opinion of the

above-mentioned Institute for Forensic Medicine dated .. October 1972,

according to which the applicant was fit for detention provided that

his state of health was supervised in the Vienna Prison hospital (where

he was then detained). The Court then mentioned that the applicant

could not invoke Section 5 of the new Execution of Sentences Act

(Strafvollzugsgesetz), since this was only to be applied mutatis

mutandis on prisoners on remand. For the decision whether a person

should be remanded in custody, and whether this detention should

continue Section 180 of the Code of Criminal Procedure had to be

applied exclusively.

On .. November 1972 the applicant appealed against this decision to the

Court of Appeal. He challenged the finding of the Judges' Chamber that

Section 5 of the above Execution of Sentences Act was not applicable

to him and insisted that this section should be applied. According to

this a prisoner must be released if his detention is impossible because

of his physical state, or because of illness. He mentioned that he had

been examined by an expert on .. October 1972, who confirmed that he

suffered from a disease of his heart, and that his general condition

was reduced. The applicant then indicated that he had suffered from

three cardiac infarctions in the past and that the last of these

infarctions was the reason for his release from detention on remand in

1968. The applicant stressed that all this was part of his medical file

and was confirmed by several experts. As regards the medical

examination of .. October 1972 he observed that the examining doctor

did not even made an electrocardiograph and that, consequently, he

could not really give a diagnosis on the applicant's condition. He

concluded that it was beyond doubt that his health was in a very bad

condition, that there was an imminent danger of his suffering a fourth

infarction, and that he could not get adequate treatment in the prison

hospital.

On .. November 1972 the applicant suffered from a stroke (cerebral

apoplexy).

On .. November 1972 the Court of Appeal dismissed the applicant's

appeal. It referred to the unchanged situation as to the applicant's

danger of absconding. It also dealt with the applicant's fitness for

detention and stated that it had before it a report from the prison

hospital that the applicant on .. November suffered from a cerebral

apoplexy as a consequence of which he was partly paralysed and was

transferred to a neurological department of the University Hospital.

The Court then telephoned the head of this department, Professor R.,

who said that the stroke was slight and that the paralysis was

simulated by the applicant. The same doctor also reported that the

applicant had certainly not suffered from  any of the alleged three

heart infarctions, although it could not be excluded that he had been

near to them. The Court of Appeal, on the basis of this information,

concluded that the applicant's attitude was an attempted disguise of

a slight stroke (Tarnungsversuch eines leichten Schlaganfalls) and

that, consequently, it was superfluous to order an electrocardiograph

for his heart. The Court found that the applicant was fit for

detention; it did, however, not deal with the question whether Section

5 of the above Execution of Sentences Act was applicable to a person

remanded in custody.

On .. December 1972 the applicant again requested his release, but on

.. December 1972 the Judges' Chamber' of the Regional Court dismissed

this request. The Court mentioned the Court of Appeal's decision of ..

November 1972 in respect to the danger of flight, and to the

applicant's state of health. It stated, moreover, that the applicant's

allegations that he was paralysed and could not move his right arm and

leg so that he had to remain seated in an invalid chair, and that he

had suffered from three heart infarctions were altogether incredible.

On .. December 1972 the Supreme Court gave its final judgment reducing

the applicant's sentence to three years' imprisonment but dismissing

his plea of nullity.

It appears that, on .. August 1973, the Court of Appeal decided that

the applicant was no longer fit for detention and on .. August 1973 he

was set free.

Complaints

The applicant complained under part (a) that he had been refused

compensation for his unjustified detention on remand from .. November

1965 until .. December 1965 and .. February 1966 until .. January 1968.

He complained under part (b) about his conviction of .. April 1972 and

stated that the above criminal proceedings, although they had ended

with his acquittal, had been taken into account in the second

proceedings, and that several of his witnesses had not been heard by

the Trial Court.

Finally, the applicant complained under part (c) about his detention

on remand after his conviction which was, in his submission,

unjustified as no danger of flight existed and since he was unfit for

detention.

He alleged violations of Articles 5 and 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The Commission considered the application on 31 May 1973 and, by a

partial decision, declared certain of the applicant's complaints

inadmissible, namely those under (a) and (b) above.

The Commission found that the complaint under Article 5 (5) of the

Convention that the Austrian courts had refused to pay compensation for

his detention on remand from .. November 1965 until .. December 1965,

and from February .. 1966 until .. January 1968 was, in the

circumstances, incompatible with the provisions of the Convention

ratione materiae and should therefore be rejected in accordance with

Article 27 (2), of the Convention.

The Commission further found that in regard to the complaint under

Article 6 (1) of the Convention that the trial court in the 1972

criminal proceedings against him had taken into account, and relied

upon, criminal proceedings which had ended with his acquittal in 1969,

the applicant had failed to exhaust the domestic remedies (Article 26

of the Convention) and his complaint should therefore be rejected under

Article 27 (3), of the Convention.

Furthermore, insofar as the applicant had made various complaints

relating to his conviction and sentence and to the court proceedings

concerned, his application was manifestly ill-founded within the

meaning of Article 27, paragraph (2), of the Convention.

However, insofar as the applicant had alleged a violation of Article

5 of the Convention by reason of his detention on remand from .. April

1972 until .. December 1972, and had submitted that this detention was

unjustified as no danger of flight existed and as he was medically

unfit for detention, the Commission decided to adjourn its further

examination of the admissibility of this complaint. In the meanwhile

it gave notice of this part of the application - in accordance with

Rule 45, 3 b) of the Commission's Rules of Procedure (old version) -

to the Austrian Government and invited them to submit their written

observations on the question of admissibility. These observations have

been sent to Commission on 8 August 1973. The applicant replied on 15

September 1973.

SUBMISSIONS OF THE PARTIES

1.   The respondent Government first made submissions concerning the

facts of the case. In this respect they quoted extracts from the

decision of the Vienna Regional Court, dated .. April 1972, and the

decisions of the Vienna Court of Appeal, dated .. May and .. November

1972, relating to the applicant's continued detention on remand. The

respondent Government underlined that the courts had consistently found

that a danger of flight existed and that the applicant's state of

health, during the entire period of his detention on remand, had been

continuously considered by the courts in consultation with the medical

authorities. In addition to this the Government pointed out that there

was another criminal procedure pending against the applicant which was

still in the stage of preliminary investigations.

The Government then made submissions with regard to the admissibility

of the remaining part of the application. They maintained first that

Article 5 (3) of the Convention should not be interpreted in a way so

as to make the requirement of "reasonable time" also depend on

subjective conditions relating to the applicant's personal situation

- as, for example, in the present case his state of health. Article 5

(3) of the Convention should only be considered in relation to

objective facts directly connected with the proceedings of the case.

In this connection the Government referred to the following passage in

the European Court's judgment in the Neumeister Case:  "The Court is

likewise of the opinion that, in determining in a given case whether

or not the detention of an accused person exceeds a reasonable limit,

it is for the national judicial authorities to seek all the facts

arguing for or against the existence of a genuine requirement of public

interest justifying a departure from the rule of respect for individual

liberty". (paragraph 5 of THE LAW).

Thus, the two elements which had to be weighed under Article 5 (3) of

the Convention are the respect of the right to liberty on the one hand

and the public interest on the other. However, the right to liberty is

a constant quantity independent of personal circumstances and, in the

same way, the applicant's state of health was therefore irrelevant for

the considerations of the public interest weighing in favour of a

continuation of his detention on remand.

The Government maintained that this view was completely in accordance

with the criteria laid down in the Wemhoff, Neumeister, Stögmüller and

Matznetter Cases in regard to Article 5 (3) of the Convention. It

followed that the subjective case of a person was not relevant for an

examination of "reasonable time" if that state existed independently

of the applicant's detention, whereas it was quite relevant where his

subjective state had been caused by the detention and was therefore its

direct result.

The respondent Government finally submitted that there was no violation

of Article 3 of the Convention. The applicant had been detained in the

Vienna Prison hospital. His allegations concerning the three cardiac

infarctions were not true and the slight stroke might be considered as

having been simulated. In this respect the Government referred to Dec.

Adm. No. 1628/72 (Collection 12, p. 67) and pointed out that the

applicant had been, during the entire period of his detention on

remand, under permanent and adequate medical care.

The respondent Government concluded that, in their submission, the

remainder of the application was manifestly ill-founded and therefore

inadmissible under Article 27 (2), of the Convention.

2.   The applicant in his reply of 15 December 1973 first rejected as

being incorrect certain observations of the respondent Government

relating to the facts of his case.

He submitted, in particular, that

(a)  he had been discharged in two proceedings by the Vienna Regional

     Court and the Wiener Neustadt Regional Court;

(b)  he never used foreign identity papers, and

(c)  he had never broken a solemn undertaking.

The applicant added that his journeys abroad could not be held against

him because they had been sanctioned by the Court and he had always

returned punctually.

Similarly it was incorrect for the respondent Government to say that

the detention on remand had been upheld on account of other

proceedings. The applicant admitted that a preliminary investigation

had been instituted against him for an offence of negligent bankruptcy

and an offence under the General Social Security Act but this

indictment had not been upheld by the Court of Appeal.

In regard to his fitness for detention on remand the applicant alleged

that the observations of the respondent Government were also incorrect.

Concerning his state of health, he referred to his cardiac infarction

which had been confirmed, after several months of detention without

sufficient medical care, by a specialist at the Vienna Institute for

Forensic Medicine who had nevertheless found him to be fit for

detention. The applicant emphasised that this diagnosis had been given

without an electrocardiogram and that for this reason he had appealed

to the Court of Appeal.

Moreover, on .. November 1972 he had suffered a stroke which, according

to he medical report of the court doctor, rendered him unfit for work

(permanent disablement within the meaning of the General Social

Security Act). The applicant also queried the statement of the Austrian

Government that the Court of Appeal had telephoned the neurologist

Professor R. on .. November 1972 before taking its decision, because

it was inconceivable that a neurologist should have alleged, without

the aid of an electrocardiogram or the results of a series of other

tests which should have been performed, that he had suffered no

infarction and that the stroke had only been slight.

The applicant underlined that he received no medical treatment

whatsoever between .. November 1972 and .. January 1973. Between ..

February and .. March 1973 he had been examined by several specialists

in the neurological hospital "A.R." at his own expense. In this

hospital the following tests had been made:

(a)  a lumbar puncture

(b)  an angiocardiogram

(c)  an electroencephalogram

(d)  an aortic arch

(e)  a Roth's eye test

(f)  an eye pressure measurement

(g)  a vascular test

(h)  an isotopic analysis

(i)  a front wall and a rear wall ECG

A successful Xenox (obstruction of the rear carotic artery) which had

been made before had shown insufficient circulation to the left brain,

which had caused necrosis of the left brain cells.

According to the applicant the results of these tests showed that there

could have been no question of any simulation on his part. Moreover,

due to the lack of treatment his illness had reached such a degree of

severity that the brain cells have been affected in many ways.

The applicant submitted that, as a result of the insufficient medical

care during his detention, he suffered two further strokes on .. April

1973 and .. May 1973 which led to a paralysis of the right eye muscle

and a neurogenic bladder disorder. Accordingly, on .. August 1973 the

Court of Appeal had confirmed his unfitness for detention and ordered

his release.

The applicant submitted that, at the time of this decision, his health

and physical well-being had suffered such harm that there was now no

longer any hope of his recovering his capacity for work. In his opinion

this state of affairs had been brought about by his unjustified arrest

on .. April 1972.

He therefore appealed to the Commission to declare his application

admissible.

THE LAW

1.   The remainder of this application concerns the applicant's

complaints relating to his detention from .. April 1972 to December

1972 with regard to which he had submitted that it was unjustified as

no danger of flight existed and as he was medically unfit for any

detention.

The Commission has considered this complaint first under Article 5 (3)

(Art. 5-3) of the Convention which provides that 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". In this connection it noted that the

period, which is the other subject of the applicant's complaint, began

with his arrest on .. April 1972 being also the date of his conviction

at first instance by the Regional Criminal Court in Vienna, and ended

on .. December 1972 which was the date of the final decision by the

Supreme Court.

The European Court of Human Rights and Fundamental Freedoms decided in

the "Wemhoff" Case that the period to be taken into consideration for

the assessment wether or not the applicant's detention violated the

provisions of Article 5 (3) (Art. 5-3) of the Convention started with

the accused person's arrest and ended with his conviction at first

instance.

In the European Court's reasoning it was clear that after that date he

was no longer detained in accordance with Article 5 (1) (c)

(Art. 5-1-c) of the Convention, namely for the purpose of bringing him

before the competent legal authority on reasonable suspicion of having

committed an offence, but was a person detained "after conviction by

a competent court" within the meaning of Article 5 (1) (a) (Art. 5-1-a)

of the Convention (European Court of Human Rights "Wemhoff" Case,

judgment of 27 June 1968, paragraph 9 of THE LAW).

It is true that, in the Ringeisen Case, the Commission questioned the

general applicability of the above jurisprudence in the special

circumstances of that case. It submitted the issue to the European

Court which, in that case, did not consider it necessary to pronounce

itself on that point as it found, for other reasons, that the

applicant's detention was covered by Article 5 (3) (Art. 5-3) of the

Convention (see Commission's Report of 19 March 1970, p. 39 and

European Court of Human Rights "Ringeisen" judgment of 16 July 1971,

paragraph 109). However, in a number of cases subsequently considered

by the Commission the above jurisprudence of the European Court in the

"Wemhoff" Case has been followed (see Commission's Report of 6 October

1970 in the Jentzsch Case, p. 12, with further references) and there

is nothing in the present case which might lead the Commission to take

a different course.

The present applicant's detention from .. April 1972 to .. December

1972 was not therefore detention in accordance with the provisions of

Article 5 (1) (c) (Art. 5-1-c) of the Convention with the consequence

that Article 5 (3) (Art. 5-3) of the Convention is not applicable to

that period of detention. It follows that the applicant's complaints,

if considered under Article 5 (3) (Art. 5-3) of the Convention, are

incompatible with the provisions of the Convention ratione materiae and

must be rejected in accordance with Article 27 (2) (Art. 27-2), of the

Convention.

2.   The Commission has further considered the applicant's above

complaint under Article 3 (Art. 3) of the Convention according to which

no one "shall be subjected to torture or to inhuman or degrading

treatment or punishment".

In this connection the Commission noted that, during the entire period

of detention which is under consideration in this case, the applicant

has been under close medical supervision at the prison hospital where

he was detained although it appears that no electrocardiogram

examination was made. Furthermore, his state of health has been

examined, with a view to his fitness for detention, first by the

Institute for Forensic Medicine and subsequently, after he had suffered

a stroke, by Professor R. of the Neurological Department of the Vienna

University Hospital. As a result of these medical examinations it was

found that his illness was not such as to render him unfit for

detention provided that the supervision of his state of health

continued. On his side, the applicant has not shown that the

supervision of his state of health has not been duly carried out.

In these circumstances the Commission finds that the applicant's

treatment during his detention, particularly having regard to the

constant supervision of his health, did not in any way constitute

inhuman or degrading treatment within the meaning of Article 3

(Art. 3) of the Convention. An examination of the case as it has been

submitted does not therefore disclose any appearance of a violation of

the Convention and particularly of the above Article.

It follows that the applicant's complaints, if considered under Article

3 (Art. 3) of the Convention, are manifestly ill-founded and must be

rejected in accordance with Article 27 (2) (Art. 27-2), of the

Convention.

For these reasons, the Commission DECLARES THE REMAINDER OF THIS

APPLICATION INADMISSIBLE.