A.   THE FACTS

The facts presented by the Parties and apparently not in dispute

between them may be summarised as follows:

The applicant is an Austrian citizen, born in 1914 and resident in

Vienna.

He is one of several persons, including Lothar Rafael and Fritz

Neumeister against whom criminal proceedings were instituted in Austria

for having frauded the exchequer by fraudulently obtaining, between the

years 1952 and 1958, reimbursement of turn-over tax to the extent of

several million schillings, such reimbursement being designed to

encourage exports.

Between 4 and 9 February 1959 the Internal Revenue Office (Finanzamt)

of Vienna I started investigations against the applicant and other on

the suspicion of having committed offenses under the Financial Criminal

Code (Finanzstrafgesetz). Subsequently, under these proceedings, the

applicant's premises were searched and the files and books of his

import-export business were seized.

On 11 August 1959, the Public Prosecutor's Office (Staatsanwaltschaft)

in Vienna made an application to the Regional Criminal Court

(Landesgericht für Strafsachen) in Vienna for the opening of

preliminary investigation (Voruntersuchung) against the applicant. It

considered that the applicant was strongly suspected of having

committed fraud (Betrug) by improperly obtaining the above

reimbursement with regard to the export of optical instruments and

textiles. On 17 August 1959 the Regional Court took a decision in

accordance with the prosecuting authority's application, and the

applicant was examined in respect of the above charge on 24 June 1960.

Subsequently the applicant went abroad, and on 10 February 1961 the

Investigating Judge (Untersuchungsrichter) Dr. L. made an order

(Steckbrief) to search for the applicant and arrest him.

The applicant was arrested on 13 February 1961 in Zürich and remanded

in custody.

On 21 February 1961, the Investigating Judge issued a warrant for the

applicant's arrest (Haftbefehl) on the ground that he was suspected of

having been an accomplice in an offence of misuse of official power

(Missbrauch der Amtsgewalt) within the meaning of Articles 5 and 101

of the Criminal Code (Strafgesetz), and of having committed fraud

within the meaning of Articles 197, 200 and 203 of the Criminal Code.

The Judge considered the fraud to consist in the obtaining of

reimbursements with regard to the export of certain running gears and

textiles, and the misuse of power in the attempt to bribe the competent

tax officer at Salzburg.

On 23 February 1961 the Austrian authorities made an application to the

Swiss Government for the extradition of the applicant.

On 28 February 1961, the Vienna Public Prosecutor's Office moved the

Regional Court to extend the preliminary investigation against the

applicant to cover also the alleged fraud with regard to export

reimbursements for gym-shoes, mole-skins and running gears and the

suspicion of having been involved in the misuse of official power as

an accomplice. The Court took a decision, in accordance with the

Prosecutor's request, on 1 March 1961.

On 26 May 1961, the applicant was released from detention pending

extradition by the Swiss authorities for reason of his bad health. The

applicant was rearrested in Switzerland on 23 January 1962 but released

once more on 16 March 1962. On 15 April 1962 the Swiss authorities

granted the Austrian Government's request for the extradition of the

applicant and on 27 September 1962 he was extradited to Austria.

The applicant was remanded in custody at the Vienna Regional Court

Hospital. He was examined again by the Investigating Judge on 19

October 1962 and on 22 October the Investigating Judge issued a

supplementary warrant of arrest against the applicant. Under this

warrant the applicant was suspected of having committed fraud (Articles

197 and 200 of the Criminal Code) in connection with the alleged

improper obtaining of export reimbursements for optical instruments,

cotton materials and again gym-shoes, mole-skins and ladies' blouses,

and also of defamation as well as having aided and abetted this offence

(Articles 5 and 209 of the Criminal Code).

In the course of the investigations, evidence was obtained in various

foreign countries, partly by means of rogatory commissions. For

example, requests for the examination of witnesses were addressed to

the Dutch, German, Italian and Swiss judicial authorities as well as

to those in the Duchy of Liechtenstein. As a result of these requests

evidence was obtained in the Federal Republic of Germany between 15

June and 4 July 1962, in Italy between 18 February 1962 and 2 July

1963, and in Liechtenstein between March 1963 and June 1964. The

Austrian authorities also communicated with the judicial authorities

in the United States of America and Canada as well as with those in

various countries in Central and South America, Africa and the Near

East.

The indictment against the applicant and nine others was submitted on

17 March 1964. The applicant was accused of the following offenses:

1.    Fraud within the meaning of Articles 197, 200 and 203 of the

Criminal Code by improperly obtaining reimbursement for the sham export

of:

(a) leather shoes, mole-skins and ladies' blouses (point I/6 of the

indictment);

(b)  running gears, between May and August 1956 (point I/7 of the

indictment);

(c)  running gears, between August and October 1956 and again February

and June 1957 (point I/8a of the indictment);

(d) textiles, through the firm Benistex et al. (point I/8b of the

indictment);

(e)  optical instruments (point I/9 of the indictment).

2.   Attempted fraud, within the meaning of Articles 197, 200, 201

Nos. (a) and (d), 203, and 8 of the Criminal Code, by attempting

improperly to obtain reimbursement for the sham export of:

(a)  textiles, concerning the firm Comtex - Centraco I Case (point

II/1 of the indictment);

(b)  textiles, between August 1959 and March 1960 - Centraco II Case

(point II/2a of the indictment);

(c)  textiles, between September and December 1959 - Centraco III Case

(point II/2b of the indictment);

(d)  electric engines - Filektra Case (point II/3 of the indictment).

3.   Attempt to aid and abet defamation within the meaning of Articles

9 and 209 of the Criminal Code (point V of the indictment).

On 16 August 1964 the Regional Criminal Court of Vienna took a decision

by which it provisionally discontinued, in accordance with Articles 34

(2) and 109 of the Code of Criminal Procedure, the proceedings against

the applicant for having been involved in the misuse of official power

as an accomplice. This charge had not been included in the indictment

but had apparently been made the subject of preliminary investigations

by decisions of 1 March 1961.

Similarly, on 28 September 1964, the same Court discontinued, in

accordance with Articles 34 (2) and 363 (1) of the Code of Criminal

Procedure the proceedings against the applicant for having made

defamatory remarks about a lawyer and Dr. Pittermann, then

Vice-Chancellor of Austria. This charge had also been included in the

indictment of 17 March 1964 but had apparently been made the subject

of preliminary investigations. In any event, the applicant had been

suspected of this offense as shown by the supplementary warrant of

arrest of 22 October 1962.

On 16 October 1964 the applicant was summoned by the Regional Criminal

Court of Vienna to appear for trial on 9 November 1964. It appears that

the applicant made an application for an adjournment of the hearing but

this was rejected by the said Regional Court on 28 October 1964.

Consequently, the trial started on 9 November 1964 but on 18 June 1965,

after 102 days of the hearing, the Regional Criminal Court of Vienna

postponed the completion thereof indefinitely so that the investigation

might be completed.

The Court also decided that the applicant should be released from

detention on remand and on 7 July 1965 the applicant was so released

after having given a solemn undertaking not to leave his place of

residence without authorization before final termination of the

proceedings against him, nor to conceal himself or do anything which

might impair the investigation of the case (Article 191 of the Code of

Criminal Procedure).

Subsequently, on 8 March 1966, the Regional Criminal Court of Vienna

decided that the proceedings against the applicant for fraud with

regard to obtaining export reimbursements for leather shoes,

mole-skins, etc., as set out under point I/6 of the indictment (point

1 (a) above), and for attempted fraud with regard to attempting to

obtain export reimbursements for textiles and electric engines, as set

out under points II/1, 2 (a) and 3 of the indictment (points 2 (a) to

(d) above) should be provisionally discontinued in accordance with

Articles 109, 227 and 34 (2) of the Code of Criminal Procedure.

On the other hand it appears that, insofar as the applicant had been

charged under point V of the indictment (point 3 above) with having

attempted to aid and abet defamation, the prosecuting authority in

Vienna decided to make these facts the subject of separate proceedings

and, on 22 February 1966, submitted an indictment in this respect. The

matter came before the Regional Criminal Court of Vienna on 13 March

1967 which, after a hearing that lasted eleven days, decided on 26

April 1967, that the applicant and his two co-accused (L. Rafael and

H. Fuchshuber) should be acquitted for lack of evidence against them.

The Vienna Public Prosecutor's Office lodged with the Supreme Court

(Oberster Gerichtshof) a plea of nullity (Nichtigkeitsbeschwerde)

against Rafael's acquittal only, but this plea was rejected on 5

February 1970.

Therefore, as far as the applicant was concerned, the charges on which,

by April 1967, he remained to be tried were fraud by improperly

obtaining export reimbursements for running gear, textiles and optical

instruments, as set out under points I/7, I/8 (a) and (b), and I/9 of

the indictment. The trial on these remaining charges opened on 4

December 1967 and continued for 81 days until 2 July 1968.

However, on 10 June 1968 the Regional Criminal Court of Vienna decided,

upon the application of the Public Prosecutor's Office, that two of the

charges against the applicant, namely those concerning the export of

textiles and of optical instruments, as set out under points 1/8 (b)

and I/9 of the indictment should be separated from the other charges.

Again, on 2 July 1968 the Court separated the proceedings on one of the

two remaining charges, namely that relating to the export of running

gears as set out under I/8 (a) of the indictment. These charges are

presently still pending before the Regional Criminal Court of Vienna.

On the other hand, on 2 July 1968 the Court convicted the applicant of

fraud with regard to the improper obtaining of reimbursements for the

sham export, between May and August 1956, of running gears, as set out

under point I/7 of the indictment of 14 March 1964. He was sentenced

on the same day to three years' severe imprisonment with the additional

penalty of "sleeping hard" (hartes Lager) once every three months.

The written judgment was communicated to the applicant's lawyer on 10

March 1969 and on 24 March 1969 the applicant lodged with the Supreme

Court a plea of nullity against his conviction and an appeal (Berufung)

against his sentence. In his plea of nullity (which comprised

altogether 80 typewritten pages) the applicant first criticised

generally the terms of the judgment and the manner in which it had been

drafted, as well as the fact that, under the relevant provision of the

Austrian Code of Criminal Procedure, he had only had two weeks to

submit his plea whereas it had taken the Court more than eight months

to prepare the judgment. In this connection the applicant also invoked

Article 6 (3) (b) of the Convention.

The applicant then stated his grounds of nullity and first relied on

Article 281 (1) Nos. 3 (and 4) of the Code of Criminal Procedure

alleging that the Court should not have taken certain evidence under

oath. He next challenged the Court's findings of fact invoking Article

281 (1), No. 5 of the Code of Criminal Procedure and pointing to

altogether 172 passages in the judgment where the Court's findings, in

his opinion, were either unclear or incomplete, or contradictory in

themselves, or based on insufficient reasoning, or contrary to the

contents of the case file.

Finally, relying on Article 281 (1), No. 4 of the Code of Criminal

Procedure and Article 6 (2) and (3) (b), (c), and (d) of the

Convention, the applicant criticised the Court's refusal to hear

certain evidence offered by him. He alleged that this deprived him of

his right to be presumed innocent until proved guilty, to obtain the

attendance of witnesses on his behalf on the same terms as those

against him and to have sufficient time for the preparation of his

defence. In this connection the applicant referred to the final pages

(pp. 344 to 367) of the judgment in which the Regional Criminal Court

of Vienna had given the reasons for its refusal to sustain 34

applications made by the applicant in his final pleadings, to hear

witnesses, and challenged these reasons.

On 16 June 1971 the Supreme Court rejected the plea of nullity insofar

as the applicant had alleged violations of procedural law. The decision

on the alleged violations of substantive law and on the appeal

concerning sentence is expected in October 1971.

B.   COMPLAINTS

In his original submissions, consisting of six bound volumes of

altogether 1,004 typed pages, two folders containing some 260

documents, as well as various letters, copies of decisions and

applications, the applicant complained under Article 5 of the

Convention, of his detention pending trial and its length, and under

Article 6 of the Convention of the Court proceedings against him and

their length. He also made various allegations regarding his right to

respect for his private and family life and his correspondence under

Article 8, his right to freedom of thought, conscience and religion

under Article 9, his right to freedom of expression under Article 10,

his right to an effective remedy before a national authority under

Article 13, and his right to be free from inhuman treatment under

Article 3 of the Convention.

The applicant stated that his health and entire existence had been

destroyed by reason of his long detention on remand, the criminal

proceedings against him which resulted in one wrong conviction and

sentence, one acquittal and the discontinuing of various proceedings,

for the sole purpose of covering up for crimes committed by the

authorities, and the continuing limitations on his right of free

movement both in Austria and Switzerland.

C.   PROCEEDINGS BEFORE THE COMMISSION

The Commission considered the application on 19 December 1970 and, by

partial decision, rejected all the applicant's complaints except that

under Article 6 (1) of the Convention relating to the length of the

criminal proceedings against him. It found that it had no competence

ratione personae to deal with complaints pending extradition as the

applicant was so detained in Switzerland and Switzerland was not a

Contracting Party to the Convention (Article 27, paragraph (2), of the

Convention); that with regard to the complaints concerning detention

pending trial in Austria the six months' time-limit provided for in

Article 26 had not been observed and that, with regard to the

applicant's complaints concerning an alleged refusal of compensation

for wrongful detention, the alleged deprival of his right to a fair

hearing by an independent and impartial tribunal in accordance with

Article 6 of the Convention, an alleged breach of his right to respect

for private and family life and his correspondence, or an alleged

inhuman treatment, domestic remedies had not been exhausted (Article

27 (3) of the Convention). The Commission further found that there was

no appearance of a violation of the Convention with regard to the

applicant's complaints concerning refusal on the part of the

prosecuting authorities to institute criminal proceedings against

judges or Government officials whom he had charged accordingly and in

this connection, his allegations under Article 13 of the Convention

were incompatible with its provisions ratione materiae (Article 27,

paragraph (2), of the Convention).

The Commission finally found that, with regard to the applicant's

complaint that the charges against him had not been determined within

a reasonable time as guaranteed by Article 6 (1) of the Convention, the

further examination of the case should be adjourned and the parties

should submit observations on the admissibility of this part of the

application in accordance with Rule 45, (3) (b) of the Commission's

Rules of Procedure.

Written submissions were obtained from the respondent Government on 16

March 1971 and the applicant submitted on 19 April 1971 his

observations in reply. In the meanwhile, on 1 April 1971, the

Commission had decided, upon the Government's request, to communicate

to them the complete submissions of the applicant; it had also decided

to invite the parties to make further explanations at an oral hearing.

The applicant had been granted legal aid for his representation at the

hearing.

At the beginning of the hearing which had been fixed to begin on 13

July 1971, the Agent of the respondent Government referred to various

passages in the applicant's written submissions and maintained that

these contained an abuse of the right of petition within the meaning

of Article 27, paragraph (2), of the Convention. He requested a

decision by the Commission on this point before continuing with the

case.

After hearing the applicant's representatives on this point, the

Commission deliberated and decided that the applicant should be

required to withdraw all statements, made in the six volumes of his

application and in his letters of 30 June 1970 and 19 April 1971;

(1)  expressed in language which was offensive in itself, both as

regards those persons whom it concerned and others, or

(2)  which allege misconduct by the Austrian authorities, e.g. judges

or officials, and are not relevant for the establishment of the facts

alleged under Article 6 (1) of the Convention.

The Commission also required that the applicant should express his

apologies and regret for such statements.

The applicant's representatives, acting on behalf of the applicant,

subsequently withdrew, in accordance with the Commission's decision,

all the statements in his written submissions described above and

expressed his apologies and regret therefor.

The respondent Government accepted this course of action and did not

pursue their objections under Article 27, paragraph (2), of the

Convention relating to an abuse by the applicant of his right of

petition.

At the same time, the Government contended, however, that as a result

of the withdrawal of the offensive and incriminating passages in the

applicant's written submissions, the application itself had lost its

substance.

In view of this allegation, the applicant's representative was invited

to restate the facts which in his opinion gave rise to his complaint

under Article 6 (1) of the Convention that the charges against him had

not been determined within a reasonable time.

D.   SUBMISSIONS OF THE PARTIES

1.   The applicant, in restating his case, referred to certain of the

criteria adopted by the Commission in its report on the Neumeister Case

in regard to Article 5 (3) of the Convention and related them to

Article 6 (1). In this connection he considered first the actual length

of the proceedings concerned.

He submitted that the period started between 4 and 9 February 1959 when

the financial authorities began investigations on the suspicion that

the applicant had committed offenses under the Financial Criminal Code.

These investigations had caused a search warrant to be issued against

the applicant on the basis of which all the business files and records

which were in the applicant's possession had been seized. This had the

effect that the applicant's business operations were stopped completely

and he was required to answer to criminal charges which were laid

against him and which were not finally determined to this day.

Consequently, the actual length of the proceedings was by now more than

twelve years and the end of the period was not foreseeable as even the

charges which had been discontinued could be taken up again at any

time.

The applicant then turned to the complexity and the extent of the

present case. He conceded that it was indeed a complex and voluminous

case, the files of which comprised 32 volumes at 1,000 pages each.

However, he could not be held responsible for the fact that the case

had become so voluminous, but this was rather the responsibility of the

investigation authorities.

Above all, the case against the applicant should have been separated

from that against the other accused persons, and also the charges

themselves should have been dealt with separately. In fact, this was

provided for in Article 57 of the Code of Criminal Procedure which

states that the competent court may decide upon an application or

proprio motu that criminal proceedings should be conducted separately

with regard to several charges or against several accused persons where

this appears suitable in order to avoid delays etc. The applicant

submitted that the judicial authorities prolonged the proceedings by

not applying this provision in his case at the stage of the

investigations.

In this connection the applicant referred to the judgment of the

European Court of Human Rights in the Neumeister Case (European Court

of Human Rights "Neumeister Case" judgment of 27 June 1968) but pointed

out that all the charges against Neumeister, except one, had been

different from those against him and that, consequently, it would have

been very easy to separate them. It was true that the European Court

of Human Rights had found no violation of Article 6 (1) in this respect

in its above judgment, but the facts were different in his case and,

furthermore, the proceedings against the present applicant had lasted

now for another four years since the Neumeister judgment had been

given.

The applicant further submitted that, at a later stage of the

proceedings against him, certain charges were provisionally

discontinued in accordance with Article 34 (2), Sec. 1 of the Code of

Criminal Procedure. Under Article 363 (1), Sec. 3 of the Code the

Public Prosecutor's Office may, however, continue the prosecution of

such discontinued charges within three months of the date on which one

or more of the remaining charged have been finally determined.

Consequently, it could not have prejudiced the prosecution's case

against the applicant, if this procedural step had been taken at an

early stage with regard to all the charges against him except that one

charge under which he and Neumeister had been accused together as being

accomplices.

The applicant then made further submissions with regard to the conduct

of his case by the authorities and courts. He alleged that the judges

concerned were not sufficiently specialised to deal with cases of this

sort and that, in particular, the methods adopted in the investigation

of the case caused the proceedings to grow to such an enormous extent

and make the whole matter rather obscure.

In this respect the applicant referred to the fact that, at the

beginning the criminal investigations were conducted by a tax officer,

Mr. Besau, and not by the Investigation Judge, Dr. Leonhardt. The

presence, during the investigations, of Mr. Besau, who was later at the

trial and the principal witness for the prosecution, was not only

improper under Articles 162 and 198 of the Code of Criminal Procedure

where it is stated that every witness or accused person is to be

examined by the Investigating Judge in the absence of the Public

Prosecutor or any other person who is not authorised by law to be

present. The fact that Mr. Besau conducted these investigations also

caused a certain duplication of the proceedings insofar as the

Investigating Judge was subsequently obliged himself to investigate and

ascertain the facts provisionally established by the tax investigator.

Furthermore, the investigations had been insufficient so that the court

had been required to adjourn the first trial in order to allow the

prosecution authorities to complete the investigations. As a

consequence of this it had been necessary to conduct three separate

trials before three different divisions of the Vienna Regional Court,

the first between 9 November 1964 and 17 June 1965, the second between

13 March 1967 and 26 April 1967, and the third between 4 December 1967

and 2 July 1968.

Moreover, there had been delays in the investigations by reason of the

fact that requests for examination of witnesses by rogatory commissions

had been made which were, in fact, not necessary and that there had

been long intervals in the examination of the accused persons. Thus,

the principal accused person, L. Rafael, had been questioned first on

22 December 1961 and then not again until 15 January 1963; similarly

there had been no interrogation of F. Neumeister between 12 July 1962

and 4 November 1963.

Finally, even the time limits expressly provided for in the Austrian

Code of Criminal Procedure had not been observed. Thus, under Article

210 of the Code, when the indictment has not been challenged by the

accused, the Investigating Judge must submit the case files to the

court of first instance which is obliged at once to fix a date for

trial. This rule had not been observed as it had taken months, after

the submission of the files, before the Regional Criminal Court had

fixed a date.

Similarly, under Article 270 (1) of the Code of Criminal Procedure, any

judgment must be completed and signed within three days. In the present

case this had taken eight months.

Finally, under Article 271 (4) of the Code stenographic notes must be

transferred into longhand record within 48 hours; but this rule was

never observed by the Austrian courts and in the applicant's case it

had taken months before the record had been completed, hence the delay

also in the completion of the judgment.

On the other hand, counsel for the defence was obliged to submit an

appeal or plea of nullity within a period of 14 days, otherwise the

case would be dismissed as being out of time (Articles 294 and 285 of

the Code of Criminal Procedure).

The applicant concluded that, even assuming that the case was very

complicated, voluminous and complex, the fact that the charges against

him had not been determined after more than twelve years amounted to

a breach of Article 6 (1) of the Convention.

2.   The respondent Government first contended that, as a result of

the applicant's withdrawal of all the offensive and incriminating

statements in his previous written submissions, his application had

lost its substance. In fact, the applicant's original complaint about

the length of the criminal proceedings against him had been based on

allegations of misconduct amounting to criminal offenses on the part

of the Austrian authorities and courts. As these allegations had not

been withdrawn there was no longer any basis or ground for this

complaint. The above restatement of his case, therefore, constituted

a new complaint which in no way satisfied the procedural requirements

under the Convention.

The respondent Government then submitted that the applicant had failed

to exhaust the domestic remedies. The burden of proof was on him in

this respect, as had been established by the Commission's case law.

Consequently, the applicant could have challenged, under the Code of

Criminal Procedure, all the individual decisions or acts of the

investigating or trial judges of which he had complained. In that

respect, Article 13 of the Convention which requires that everyone

whose rights and freedoms as set forth in the Convention are violated

shall have an effective remedy before a national authority had been

observed in the Austrian legal system.

It was true that there was no special remedy with regard to the right

to a hearing within a reasonable time by a court. But any action or

inaction on the part of a judge or other judicial organ could have been

challenged by means of a hierarchical appeal

(Dienstaufsichtsbeschwerde) or, where damages have arisen, by means of

a complaint under the Official Liability Act (Amtshaftungsgesetz).

This, according to the Government, applied in particular to the

applicant's complaints regarding the failure to separate the

proceedings or to complete the judgment and the minutes of the hearing

within the time limits prescribed by the Code of Criminal Procedures

well as to the complaints concerning the investigations.

The respondent Government then made submissions concerning the period

involved in the present case. They contended that the starting date was

in August 1959 as it was only then that preliminary judicial

investigations had been introduced against the applicant. The

investigations made under the Financial Criminal Code could not be

taken into consideration because they related to a quite separate

procedure which was not the subject matter of the present application.

Furthermore, the end of the period was, in the Government's

submissions, 19 November 1964, being the date on which the first trial

opened. The Government referred to the text of Article 6 (1) of the

Convention and explained that this provisionally granted the right to

an accused person to receive a hearing (rechtliches Gehör) within a

reasonable time. This was achieved when the accused person was brought

before the tribunal competent to try his case and the period ended

there. The situation might be different when the court, acting in bad

faith, fixed a date for hearing in order to stop the running of the

period and then adjourned the case during a long period of time.

However, there was no indication that these special circumstances

prevailed in the present case. Consequently, the period which was under

examination in this case was the period from August 1959, being the

date of the opening of preliminary judicial investigations, to 19

November 1964, being the date of the opening of the first trial.

The Government then submitted that it was well possible that certain

acts by the investigating authorities and courts might have been

inconsistent with the provisions of the Code of Criminal Procedure but

either these inconsistencies had been unavoidable or they had no

influence on the length of the proceedings concerned.

Thus it was true that a hearing had not been fixed immediately after

the files had been submitted to the Regional Court, but a preparatory

period of 71/2 months must be considered as being reasonable in a case

which is as complex and difficult as the present case. Similarly, it

had been impossible to complete the judgment and the minutes within the

time limits envisaged by the Code in so voluminous a case as the

present. Moreover, the presence of a tax investigator during the

investigations could not have prolonged the proceedings and there was

certainly no proof of any duplication of the investigation proceedings

concerned. The fact that in the minutes reference had been made to

evidence given on a previous occasion could not be regarded as proof

for the allegation that the proceedings had been duplicated as this was

rather a normal process.

It is true that the adjournment of the trial for the completion of the

investigations caused a delay, but the reasons for this adjournment

were justified as was clear from the relevant court decisions. The

applicant himself had refused to make any statements between October

1962 and the first trial, and when he had finally given evidence the

statements by him had not always been true. Consequently, it was to a

large extent his own conduct that had required the court to adjourn the

trial.

As regards the length of the preliminary investigations the Government

submitted that this was to a considerable extent caused by the length

of the extradition proceedings and the manner in which the requests for

the taking of evidence abroad by rogatory commission had been dealt

with by the judicial authorities in those countries. Thus the request

for the applicant's extradition, made on 23 February 1961 had been

granted by the Swiss authorities only on 15 April 1962 and the

applicant had, in fact, been extradited only on 27 September 1962.

Similarly, the taking of evidence abroad had, in some cases, only been

accomplished nearly a year and a half after the request had been made

by the Austrian authorities.

Moreover, this whole process of obtaining evidence from abroad had been

extremely complicated and time consuming. For instance, it had been

necessary to follow the course of 160 railway carriages from Salzburg

through several European countries and to examine numerous witnesses

as well as railway and other records abroad, including several

non-European countries. The Austrian authorities had done everything

in their power to expedite these investigations, had repeatedly

reminded the foreign authorities of the urgency of the matter and had

even obtained the assistance of Interpol. In retrospect, perhaps,

certain of these steps might be considered as having been unnecessary,

but at the time that they were taken they had appeared fully justified.

The respondent Government then made submissions in regard to the

question of separation. They first pointed out that Article 57 of the

Code of Criminal Procedure which had been invoked by the applicant, was

the exception to the rule stated in Article 56 of the Code. Article 56

provided that, as a rule, the proceedings should be joined where

several charges are preferred against one person or where several

persons are charged with the same offence.

Apart from this, there had been separations as early as 1962, and again

in 1963 and in 1964. In fact, originally the investigations had been

conducted against 23 suspects but, in the end, only ten had been

charged with criminal offenses. It was true that the proceedings

relating to the Beinstex textiles had been discontinued in the

Neumeister Case already in 1964 whereas in the applicant's case they

had been separated only in 1968. The reason for this was the conduct

of the applicant who had originally refused to make any statements at

all and had made substantial applications for the taking of further

evidence only at the end of the second trial. Furthermore, it was

somewhat inconsistent on the part of the applicant to complaint on the

one hand that certain charges had not been separated and on the other

hand that they had been separated, as for instance the charges relating

to running gears (point I/8 of the indictment) where he had challenged

the lawfulness of the separation in his plea of nullity.

The respondent Government further explained that, in principle,

separation was not really in the interest of an accused person because

he is obliged to give evidence as a witness when he is no longer an

accused person, whereas he is otherwise entitled to refuse to make any

statement whatsoever.

The respondent Government finally raised the question whether in a case

where the proceedings relating to a particular charge have been

discontinued in accordance with Article 34 (2) of the Code of Criminal

Procedure the person could still be considered as being charged with

a criminal offense within the meaning of Article 6 of the Convention.

The Government submitted that this question related particularly to

those charges which had been discontinued in March 1966 but added that

it was not really relevant in support of their case as, in their

submissions the period under examination had terminated in November

1964.The Government concluded that, in these circumstances, the applicant's

complaint, under Article 6 (1) of the Convention relating to the length

of the criminal proceedings against him, even assuming that it was at

all properly before the Commission at this stage, was inadmissible for

failure to exhaust domestic remedies and, in any event, as being

manifestly ill-founded.

3.   The applicant replied by submitting first that his withdrawal of

the offensive and incriminating statements of his written submissions

could not possibly affect the substance of his complaint concerning the

length of the criminal proceedings against him. He points out that the

facts as they had been submitted by him remained; what he had presented

during the oral hearing was not a new application but simply the

restatement of the facts which, in his opinion, constituted a violation

of his right to a hearing within a reasonable time under Article 6 (1)

of the Convention. Moreover, the Commission had the power to examine

ex officio whether particular facts alleged constituted a violation of

the Convention and it was not necessary that the reasons which the

applicant had submitted in support of his allegations lead to this

conclusion, as long as the facts as such gave rise to a question in

this respect.

The applicant then made submissions with regard to the exhaustion of

remedies and contended that there had not been any effective remedies

at his disposal which he could have exhausted. In the first place the

complaint that the criminal charges against him had not been determined

within a reasonable time, constituted a complaint against a continuing

situation in respect of which no remedies are available under Austrian

law. The alleged violations of Austrian procedural law in the course

of the investigations which had only been raised by him in order to

show that, even under Austrian law, fixed time limits had been exceeded

in his case, had not been known to him at the time they were committed.

Consequently, it had not been possible for him to challenge these acts

by means of a hierarchical appeal at that time. Subsequently, after the

indictment had been filed, the Investigating Judge had no jurisdiction

any more. The orders of the trial judge could only be challenged by

means of a plea of nullity and an appeal and that had been done. On the

other hand, it would appear that by reason of the fact that no

immediate remedy was available against the orders or delays caused by

the trial judge, Article 13 of the Convention was not observed by the

Austrian legal system.

Moreover, a complaint under the Official Liability Act was not an

adequate remedy to expedite criminal proceedings. This procedure only

envisaged civil proceedings where damages have arisen as a result of

an unlawful act committed by the authorities in the execution of the

law. Besides, any deficiencies in the conduct of the investigation and

criminal proceedings had been removed in the course of the proceedings,

except the length as such.

The applicant then made submissions concerning his own conduct during

the proceedings. He explained that his refusal to make any statements

during the investigations and prior to the trial had been his reaction

to a demand on the part of the authorities to sign depositions which

in his opinion were not correct. He stated that such refusal was

permissible under Articles 199 and 200 of the Code of Criminal

Procedure.

Furthermore, he had requested an adjournment of the trial in 1964

because at that time he had not had sufficient opportunity to examine

the case file and prepare himself for his defence. As he had been ill

at the time and as only one copy of the file had been available for all

of the ten co-accused persons it had not been possible for him to

examine the file sufficiently in advance.

Similarly, it had been necessary for his counsel to make various

applications to examine further evidence on the last day of the second

trial as he had not known until that time what charges would be

determined at the trial and what charges would be separated.

As regards the separation, the applicant submitted that the effect of

discontinuing certain charges was not that the person concerned was no

longer charged with a criminal offence in this respect. Under Article

207 of the Code of Criminal Procedure a person is accused (Versetzung

in den Anklagestand) when the indictment is filed. This situation could

only be changed by means of a withdrawal either in accordance with

Article 227 or under Article 259, Sec. 2 of the Code. Neither of these

withdrawals having been made in the present case the applicant was

still charged with the criminal offenses set forth in the indictment,

although certain of these had subsequently been provisionally

discontinued and prosecution thereof might never be resumed.

The applicant finally submitted that, as regards the period under

examination, the proceedings under the Financial Criminal Code and

those under the Criminal Code constitute a unity. Consequently, the

period started on 4 February 1959 when the financial proceedings were

instituted against him. It still continues today.

In these circumstances the applicant submitted that his complaint under

Article 6 (1) of the Convention was both admissible and well founded.

THE LAW

1.   The Commission first considered the respondent Government's

objection to the admissibility of the application on the ground that

it constituted an abuse of the right of petition within the meaning of

Article 27, paragraph (2) (Art. 27-2), of the Convention in that it

contained certain objectionable statements. Such statements either were

expressed in language which was offensive in itself or they alleged

misconduct by the Austrian authorities and were not relevant for the

establishment of the facts alleged under Article 6 (1) (Art. 6-1) of

the Convention.

The Commission noted that during the oral hearing the applicant had

withdrawn all such statements and had expressed his apologies. These

statements will thus be deemed to be struck out of the record. The

Commission further noted that the respondent Government had declared,

in view of the applicant's withdrawals and apology, that they did not

pursue their objection to admissibility on this ground.

In these circumstances the Commission finds that it is not necessary

to consider any further the question whether or not the application was

inadmissible under Article 27, paragraph (2) (Art. 27-2), of the

Convention as constituting an abuse of the right of petition.

2.   The Commission next considered the question whether or not, as

a result of the withdrawal of the offensive and incriminating

statements in the applicant's written application, his application had,

in fact, lost its substance and whether his submissions at the oral

hearing constituted a new application which did not satisfy the formal

and procedural requirements under the Convention and the Commission's

Rules of Procedure.

The respondent Government had made allegations to this effect following

the applicant's withdrawal of the offensive and incriminating

statements made by him. The Government argued that the application had

been based solely on allegations that the Austrian authorities had

committed criminal offenses in the course of the investigations and

criminal proceedings against the applicant and, as these allegations

had subsequently been withdrawn, the entire application originally made

by him ad lost its substance. He had now restated his case and this

constituted a new application which did not satisfy the formal and

procedural requirements under the Convention and the Rules of

Procedure.

The applicant alleged in this respect that, in withdrawing the

statements concerned he had not intended to withdraw his entire

application. He had simply withdrawn statements considered

objectionable. This implied that the facts, as they had originally been

submitted by him, remained to be examined. Moreover, when restating his

case at the oral hearing he had in no  way submitted a new application,

but had simply presented these facts again in terms which could not

lead to any further objection under Article 27, paragraph (2)

(Art. 27-2), of the Convention as constituting an abuse of the right

of petition.

The Commission first finds that it is not necessary, at this stage of

the proceedings on admissibility, to examine in detail the applicant's

written submissions in order to ascertain which of the statements made

by him shall be deemed to be struck out of the record. It suffices to

state that all those statements expressed in a language which is

offensive in itself or which allege misconduct by the authorities and

are not relevant for the establishment of the facts alleged under

Article 6 (1) (Art. 6-1) of the Convention shall be deemed to be struck

out.

In the Commission's opinion, this does not, however, affect the facts

of the case as they had originally been submitted by the applicant. It

is true that the respondent Government does not contend that the facts

of the case are not before the Commission. What the Government submits

is that the original application which was the subject matter of these

proceedings had been based exclusively on allegations that the Austrian

authorities had committed criminal offenses. This allegation had now

been withdrawn by the applicant leaving only an unfounded complaint

that Article 6 (1) (Art. 6-1) of the Convention had been violated. In

the Government's submissions, an unfounded complaint cannot constitute

an application under Article 25 (Art. 25) of the Convention, as an

applicant must submit reasons (Gründe) to show that his rights have

been violated.

However, in the Commission's opinion, this view of the respondent

Government is not supported by the provisions of the Convention or the

Rules of Procedure or otherwise. Under Article 25 (Art. 25) of the

Convention, the Commission may receive petitions from any person etc.

"claiming to be the victim of a violation by one of the High

Contracting Parties of the rights set forth in this Convention", and

Rule 41 of the Rules of Procedure of the Commission sets out the

elements that should be mentioned in an application. None of these

provisions requires that, in order to establish his case before the

Commission, an applicant should have to make, and even has to

substantiate, allegations of criminal acts or negligence on the part

of the Government. It suffices that he submits the facts of his case

and alleges that these facts amount, in his opinion, to a violation by

the respondent Government of rights set forth in the Convention. In

that case the Commission must decide, at the stage of admissibility,

whether or not the facts referred to it disclose an appearance of such

a violation; indeed, it may even consider ex officio whether violations

other than those which the applicant alleges have been disclosed.

In the present case the applicant has not withdrawn any of the facts

originally submitted by him, nor his allegations that these facts

amount to a violation by the Austrian Government of Article 6 (1)

(Art. 6-1) of the Convention. He has, however, withdrawn his

allegations qualifying the Government's conduct as amounting to

criminal offenses. Such allegations were quite irrelevant for the

establishment of the facts of his case, or for a determination by the

Commission of the issue of violation, and their withdrawal did not in

any way affect the substance of his complaint under Article 6 (1)

(Art. 6-1) of the Convention.

In these circumstances the Commission finds that it was, and still is,

called upon to examine whether or not, on the facts originally

submitted by the applicant his right to a hearing within a reasonable

time, as guaranteed by Article 6 (1) (Art. 6-1) of the Convention, has

been violated. The Commission does not find, therefore, that a

restatement of the facts by the applicant at the hearing amounted in

any way to a new application as was also suggested by the Government.

3.   The Commission next considered the respondent Government's

objections under Article 26 (Art. 26) of the Convention. That provision

states:

"The Commission may only deal with a matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken."

(a)  The respondent Government has submitted that, although there was

no special remedy under Austrian law with regard to the right to a

hearing by a court, within a reasonable time, it was possible to

challenge any action or inaction on the part of a judge or other

judicial organ by means of a hierarchical appeal

(Dienstaufsichtsbeschwerde) or, where damages have arisen by means of

a complaint under the Official Liability Act (Amtshaftungsgesetz). As

the applicant had relied, in his application, on numerous individual

incidents allegedly showing an undue prolongation of the criminal

proceedings against him, he should have availed himself of the above

remedies.

The applicant has alleged that there were no effective remedies at his

disposal under Austrian law and that those remedies that were available

had been employed by him. The applicant explained that during the

investigations he had not been aware of the procedural violations which

had actually occurred and that those violations which had arisen during

the trial and had been challenged in his plea of nullity and appeal to

the Supreme Court. Moreover, both the hierarchical appeal and the

complaint under the Official Liability Act were not designed to

expedite proceedings whose undue length was his only complaint before

the Commission at this stage.

The Commission refers in this respect, in particular, to its decision

on the admissibility of application No. 4459/70, Kaiser against

Austria. In that case the Commission had been called upon to examine

whether or not the two remedies mentioned above by the respondent

Government were, in fact, effective and sufficient remedies where the

applicant had complained that the provisions of Article 270 (1) of the

Code of Criminal Procedure, requiring the completion of the drafting

of the judgment within a period of three days, had not been observed

and that his right under Article 6 (1) (Art. 6-1) of the Convention had

therefore been violated. The Commission found that neither remedy was,

in the circumstances, an effective remedy to redress the situation of

which the applicant had complained, but concluded that, for other

reasons, the complaint was manifestly ill-founded.

In the present case the Commission comes to the same conclusion as

regards the question of exhaustion of domestic remedies. Having regard

to the hierarchical appeal, it finds that, even if that disciplinary

procedure constituted under Austrian law a remedy against certain

lapses in the administration of justice it was not, in the

circumstances of the present case, designed to redress the situation

of which the applicant complains, namely that the criminal charges

against him have not been determined within a reasonable time and that

this situation still continues.

In this connection the Commission had again due regard to the uncertain

position in which the applicant found himself at the time to the extent

that he was not fully aware of the procedural decisions taken against

him.

Moreover, an accused person could perhaps hardly be expected to start

such disciplinary procedure against a judge who will then proceed to

decide the question of his guilt and of the sentence to be imposed on

him.

Similarly, a complaint under the Official Liability Act is limited to

a claim for actual liquidated damages and is not designed to accelerate

criminal proceedings.

The Commission finds, therefore, that with regard to the applicant's

complaint under Article 6 (1) (Art. 6-1) of the Convention relating to

the length of the criminal proceedings against him, no effective

remedies within the meaning of Article 26 (Art. 26) of the Convention

was available to him under Austrian law.

The Commission further finds that it cannot decide upon the applicant's

complaint under Article 13 (Art. 13) of the Convention as that

provision is applicable only where the "rights and freedoms set forth

in the Convention are violated" and no such findings has been made or

is required at the present stage of the proceedings.

(b)  Article 26 (Art. 26) of the Convention further requires that an

application to the Commission should be introduced not later than six

months after the final decision relating to the complaint concerned.

In this connection the Commission is called upon to examine what period

is under consideration in the present case.

The respondent Government has alleged that the criminal proceedings

against the applicant, which began in August 1959 with the opening of

preliminary investigations against him, ended on 9 November 1964 when

the first trial started before the Regional Criminal Court of Vienna.

The Government explained that, under Article 6 (1) (Art. 6-1) of the

Convention, the applicant was entitled to receive within a reasonable

time a "hearing" by a court. This simply required that the applicant

should be brought within a reasonable time before a court where he

should have an opportunity to defend his case, but it did not require

that the charges against him should be finally determined within a

reasonable time. The only exception would be where a court acted in bad

faith in fixing an early hearing in order to comply with this

requirement under Article 6 (1) (Art. 6-1) of the Convention and then

adjourned the hearing in order to complete the case against the accused

person concerned. However, there was no indication that this exception

would be applicable in the present case, so that the period under

examination had ended on 9 November 1964, being the date on which the

first trial opened.

The applicant had relied on the judgment of the European Court of Human

Rights in the Neumeister Case (European Court of Human Rights

"Neumeister Case" judgment of 27 June 1969, paragraph 19 of THE LAW)

which found that Article 6 (1) (Art. 6-1) of the Convention indicated

as the terminating date the judgment determining the charge, the period

thus lasting until conviction or acquittal, even if this decision was

reached on appeal. Since the appeal and plea of nullity made by him

were, at least partly, still pending before the Supreme Court the

period under examination in his case which had started in February 1959

with the opening of investigations by the financial authorities, is

still continuing.

The Commission considers that it is not necessary to determine, at this

stage of the proceedings before it, the exact dates at which the period

under examination in the present case, started or ended. What it must,

nevertheless, decide is whether or not the application has been lodged

within the six months' time-limit laid down in Article 26 (Art. 26).

The Commission finds that, with regard to the criminal charges, now

under consideration, the situation complained of by him continued in

February 1970, i.e. during the period of six months preceding 16 June

1970, being the date on which the application was lodged with the

Commission. In this connection, the Commission refers to its own

jurisprudence and to that of the European Court of Human Rights and

concludes that the application is not inadmissible for non-observance

of the six months' time-limit laid down in Article 26 (Art. 26) of the

Convention.

4.   The Commission finally considered the question whether or not the

applicant's complaint under Article 6 (1) (Art. 6-1) of the Convention

relating to the length of the criminal proceedings against him was

manifestly ill-founded.

The applicant has alleged that the failure finally to determine certain

of the charges against him during a period of 121/2 years deprived him

of a hearing of his case within a reasonable time within the meaning

of that provision.

The respondent Government has here maintained that the case against the

applicant, which was as a whole extremely voluminous and complex, had

been handled by the Austrian authorities and courts with the greatest

possible speed and care. Those delays which had in fact occurred,

however, had been unavoidable or had been caused by the applicant's own

conduct.

The applicant conceded that his case was voluminous and complex but

maintained that this was the result of the manner in which it had been

conducted by the authorities and courts in Austria. In fact, on

numerous occasions the Austrian Code of Criminal Procedure had been

violated causing a protraction of the proceedings for which he himself

was in no way responsible.

Both the European Commission and Court of Human Rights have held

repeatedly that the reasonableness of the period within which a person

is entitled to a hearing of his case under Article 6 (1) (Art. 6-1) of

the Convention must not be assessed in abstracto but in the light of

the particular circumstances of the case concerned (see, for example,

the decision in the Neumeister, Wemhoff and Ringeisen Cases).

Article 27, paragraph (2) (Art. 27-2), of the Convention in requiring

the Commission to declare inadmissible any application from an

individual which it considers to be "manifestly ill-founded" does not

permit the Commission, at the stage of considering the admissibility,

to reject a complaint whose lack of foundation cannot be so described.

In the present case the Commission has carried out a preliminary

examination of the information and arguments submitted by the parties.

The Commission finds that the complaint made by the applicant under

Article 6 (1) (Art. 6-1) of the Convention is of such complexity that

its determination should depend upon an examination of its merits. It

follows that it cannot be regarded as manifestly ill-founded within the

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

no other ground for declaring this part of the application inadmissible

has been found.

For these reasons the Commission,

Declares admissible and retains, without in any way prejudging the

merits of the case, the allegation made by the application in respect

of Article 6 (1) (Art. 6-1) of the Convention that, in the

determination of the criminal charges against him, he did not receive

a hearing within a reasonable time by a tribunal established by law.