THE FACTS

The facts of the case, which are apparently not disputed, may be summarised as

follows:

The applicant is an Austrian citizen, born in 1917, and when lodging this

application was detained in the special prison hospital of Vienna

(Inquisitenhospital). In the proceedings before the Commission the applicant

is represented by Rechtsanwalt Dr. Leo Kaltenbäck, a lawyer practising in

Graz.

On 23 January 1969 the applicant was arrested on suspicion of murder.

By judgment of the Regional Court (Landgericht) of Vienna of 10 February 1970

the applicant was convicted of murder and sentenced to five years'

imprisonment. The applicant was found to have made a suicide pact with his

mistress, in execution of which, on 23 January 1969, he shot her and then

himself with a pistol. He also introduced exhaust fumes into the interior of

his car. The applicant, however, survived this but his mistress died. The

post-mortem examination revealed that she had died of carbon monoxide

poisoning. The applicant himself was badly injured; he is paralysed and was

detained in the above prison hospital.

The above judgment was publicly pronounced on 10 February 1970, but it appears

that the written judgment was only served on the applicant on 25 May 1970. The

applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme

Court (Oberster Gerichtshof) but, as he was not yet in possession of the

written judgment, no further steps could be taken by him and the Supreme Court

was not in a position to decide on the appeal. The Public Prosecutor also

lodged an appeal against sentence, and already on 25 February 1970 gave the

full grounds of his appeal. In this respect it is undisputed, and admitted by

the respondent Government, that the Public Prosecutor could do so since he had

access to the files which already contained the draft judgment.

On 20 March 1969 the applicant's counsel requested the Regional Court to

release the applicant from custody. He maintained that there were no reasons

whatsoever to justify the applicant's detention; the danger of the applicant

absconding obviously did not exist as he was totally paralysed; no risk of

collusion could be supposed since there were no witnesses; and finally it was

emphasised that the danger of the applicant committing further offenses was

excluded, since he had acted in an emergency situation and because he was

paralysed. The applicant finally offered bail of 20.000 Austrian Schillings,

which was his total savings. He also pointed out that, in the event of his

release, he intended to go to the hospital at Graz where his family lived.

By decision of 21 March 1969 the Regional Court of Vienna dismissed the

applicant's request on the ground that release pending trial was excluded by

law in similar cases in view of the provisions of Article 180 (2) of the

Austrian Code of Penal Procedure (Strafprozessordnung). This paragraph reads

as follows:  "detention on remand has to be ordered if a crime is involved

where, according to law, a minimum penalty of ten years' imprisonment is

fixed". Article 194 of the same Code, however, authorises the Court of Appeal

to grant such release. The applicant failed to appeal to this Court.

On 27 October 1969 the applicant's lawyer wrote a letter to the President of

the Regional Court of Vienna and suggested that the President should urge the

Investigating Judge to accelerate the investigation in view of the physical

condition of the applicant.

The applicant, after his conviction on 10 February 1970 by the Court of First

Instance on 13 February 1970 he again requested his release pending trial. He

indicated that he had appealed against the Regional Court's judgment and that

the Public Prosecutor had also appealed towards the sentence. The applicant

maintained that it was inhuman to keep him in detention in view of his bodily

condition.

By decision of 6 March 1970 the Regional Court dismissed the applicant's

request in view of the terms of Article 180 (2) of the Code of Criminal

Procedure whereby no release could be granted. Furthermore, reference was made

to the established practice as regards Article 194 of the above Code which

provides that the Court of Appeal can grant release pending trial even in

cases similar to the applicant's. According to this practice, such release

cannot be granted, despite the wording of this Article. The Court stated that

Article 194 allowed release only in cases where a 10 years' minimum penalty

was fixed but not where a life sentence was involved.

The applicant appealed against this decision to the Court of Appeal, but by

decision of 24 June 1970, the Court confirmed the Regional Court's refusal.

The Court of Appeal stated that an interpretation of Article 194 in the light

of other provisions of Austrian criminal law leads to the result that no

release can be granted in case of crimes which according to the law are to be

punished with life imprisonment, but only in cases where a ten years's minimum

penalty was provided for. The Court referred in this respect to an order made

by the Ministry of Justice of 23 December 1919, which gives such an

interpretation of Article 194. The Court further pointed out that the Supreme

Court by decision of 6 May 1964 has again confirmed this application of the

above Article and that since then this was the leading case for all the Courts

of Appeal.

The Supreme Court in its above decision has discussed the bearing of the

European Court of Human Rights on this provision of the Code of Penal

Procedure, but has found it not to be at variance with Article 5 (3) of the

Convention. The Supreme Court held in this respect: "Article 5 (3) of the

Convention does not provide that a person remanded in custody has, under all

circumstances, the right to release pending trial, but confers such a right

only as an alternative to conviction within a reasonable time".

As regards the completion of the written judgment of the Regional Court, it

appears that this was delayed because the transcript of the trial was not

available until shortly before 19 May 1970.

On 19 May 1970 the Presiding Judge gave the order to serve the judgment on the

applicant, who received it on 25 May 1970. On 5 June 1970, applicant's counsel

filed his full appeal with the Supreme Court, which gave judgment on 8 October

1970. The Court dismissed the appeals both of the applicant and of the Public

Prosecutor, and the full text of the judgment was served on the applicant on

18 November 1970.

On 16 October 1970 the applicant requested his release from detention under

Articles 398 of the Rules of Penal Procedure and 5 of the Execution of

Sentences Act (Strafvollzugsgesetz) for physical unfitness for detention. By

decision of 22 October 1970 the applicant was released from prison for this

reason.

Complaints of the applicant

In his application to the Commission, the applicant complains:

1.   that his detention in a prison hospital constituted inhuman treatment

within the meaning of Article 3 of the Convention;

2.   that his detention was not justified since there existed no reasons which

necessitated his detention. He alleges that his detention cannot " reasonably

be considered necessary to prevent his committing an offense or fleeing after

having done so"; the applicant alleges that, consequently Article 5 (1) (c)

has been violated;

3.   that Article 5 (3) has been violated because of the established practice

of the Austrian judiciary not to grant release pending trial in similar cases,

despite the provisions of Article 194 of the Austria Code of Penal Procedure.

He alleges in this respect that he was not tried within a reasonable time

since it took more than three months to obtain the written judgment from the

trial court;

4.   that the Austrian courts did not decide within a reasonable time upon his

request for release pending trial;

5.   that Article 6 (1) has been violated since the length of the proceedings

in such a simple case was not justifiable.

History of the proceedings before the Commission

On 28 April 1970 the President of the Commission, acting ex officio, under

Rule 38, 1 of the Commission's Rules of Procedure, gave priority to this

application.

A group of three members of the Commission carried out, on 20 July 1970 a

preliminary examination of the application, and suggested that the respondent

Government should be invited to submit its written observations on the

admissibility of parts of the application in accordance with Rule 45, 2 of the

Rules of Procedure.

On 5 October 1970 the Commission took a partial decision and declared

inadmissible that part of the application which concerns the applicant's

complaint that his detention in the prison hospital constituted an inhuman

treatment under Article 3 of the Convention, and that his detention on remand

was not justified under Article 5 (1) (c) of the Convention. At the same time,

it decided with respect to the remaining parts of the application to give

notice to the Austrian Government of these parts of the application and to

invite the Government to submit its observations on the admissibility of the

remaining complaints.

On 4 December 1970 the Austrian Government submitted its written observations,

and on 12 January 1971, supplementary observations of the respondent

Government were received in the Commission's Secretariat; both observations

were communicated to the applicant, who submitted his observations in reply by

letter of 2 February 1971. In his reply the applicant indicated that he wished

to withdraw his complaint that the Austrian courts did not decide within a

reasonable time upon his request for release pending trial.

A group of three members of the Commission carried out, on 10 March 1971 a

second examination of the application and reported thereof to the Commission.

The Commission, on 31 March 1971, examined the admissibility of the

application. The Commission was of the opinion that the questions arising on

this complaint were sufficiently clear and that it would not invite the

parties to make oral explanations under Rule 46, 1 of the Rules of Procedure

unless the respondent Government wished to do so. On the same day, on the

Commission's question, the respondent Government informed the Commission that

in the circumstances it did not wish to make further oral explanations.

Submissions of the parties

The submissions of the parties may be summarised as follows:

1.   As to the applicant's detention on remand

The respondent Government submitted that, in view of the jurisprudence of the

European Court, the period of the applicant's detention on remand started on

23 January 1969 and ended on 10 February 1970, when the Regional Court had

given its judgment. The applicant's subsequent detention was, according to the

Government, a lawful detention after conviction within the meaning of Article

5 (1) (a) of the Convention. Consequently, the guarantee of Article 5 (3) of

the Convention only applied to the applicant's detention until the conviction

by the Court of First Instance on 10 February 1970. With respect to this

period of the detention the Government submitted that the applicant had not

exhausted the domestic remedies available to him under Austrian law according

to Article 26 of the Convention. It was said that the request of the applicant

for release (Haftbeschwerde) was not an effective remedy in view of the

provisions of Article 180 of the Code of Penal Procedure, which provide for an

obligatory detention on remand, which could not be attacked with such a

request.

With respect to the length of the applicant's detention it was pointed out

that this had been reasonable, since it had lasted for little more than a year

only, and this had been adequate in view of the nature of the charges laid

against the applicant.

The applicant replied that according to Article 194 (1) of the Code of Penal

Procedure the Court of Appeal could grant release in such cases, where a

minimum penalty of ten years' imprisonment was involved and that this also

should apply to cases where a life sentence is fixed by the law. The

interpretation of the Austrian courts not to grant release in these cases was,

according to the applicant, erroneous, and could not be based on the terms of

the law. He also alleged that this interpretation of Article 194 could not be

applied on the applicant's detention after his conviction by the Court of

First Instance, since he had been given less than ten years' imprisonment,

namely a five years' sentence.

2.   As to the alleged violation of Article 5 (4) of the Convention

The respondent Government submitted that the applicant had requested his

release on 20 March 1969 and the Investigating Judge had given his decision on

21 March 1969; the applicant's second request for release, dated 13 February

1970 had been dismissed by the Regional Court on 6 March 1970, the applicant's

further appeal to the Court of Appeal had been dismissed by decision of 24

June 1970. The Government submitted in this respect that the Court of Appeal

had only been given the files by 5 June 1970; until then they had been needed

by the trial court for the completion of the judgment. In these circumstances,

it was submitted, no unreasonable delay could be found in the proceedings of

the courts.

The applicant replied that he withdrew his complaints under Article 5 (4) as

he admitted that the courts had not decided within a reasonable time.

3.   As to the alleged violation of Article 6 (1) of the Convention (length

of proceedings)

The respondent Government submitted that the applicant in this respect had not

exhausted his remedies according to Article 26 of the Convention, since he had

failed to lodge a formal disciplinary complaint (Dienstaufsichtsbeschwerde)

under Article 78 of the Organisation of Judiciary Act

(Gerichtsorganisationsgesetz) and Article 15 of the Code of Penal Procedure.

With respect to the delay in completing the written text of the judgment,

given orally on 10 February 1970, it was also submitted that the applicant had

not exhausted his remedies either since he had failed to bring proceedings

under the Liability of Officials Act (Amtshaftungsgesetz) against the judge

concerned. The Government in this respect invoked Article 270 of the Code of

Penal Procedure which imposed the legal obligation on the judge to complete a

judgment within three days after its pronunciation. The Government admitted

that the Presiding Judge had acted contrary to this provision and emphasised

that the applicant, therefore, had had the possibility of requesting

compensation under the above Act.

The Federal Government also submitted that the period as such had not been

unreasonably long in view of the complexity of the case and the particular

circumstances which had made the investigation of the crime difficult. It was

pointed out that the applicant himself, in view of his bad state of health,

could not be heard extensively by the Investigating Judge until 12 June 1969

and that the opinion of the expert in forensic medicine on the crime had been

given as late as 14 July 1969 although it had been requested already on 29

January 1969. The applicant, furthermore, had been examined as to his criminal

responsibility, and this had caused further delay. Finally, it was mentioned

that the applicant's total lack of memory, although understandable in view of

his injuries, had also prolonged the investigation.

The applicant replied that the period had been too long, in view of the

relatively simple case. The files showed, according to him, that for several

months, namely between January and July 1969, nothing had happened in the

investigation opened against the applicant. The applicant also submitted that

the reason given by the respondent Government for the delay in the completion

of the written judgment, namely that the Court had been short of typists and

that thus the transcript of the hearing could not be typed, was no excuse; in

this respect reference was made to Article 27 (4) of the Code of Penal

Procedure which provided that this transcript had to be delivered within 48

hours after the trial. The applicant also pointed out that the Government had

admitted that the Public Prosecutor had been able to consult the file at an

earlier moment, and that he had found the draft judgment in the files on 25

February 1970.

THE LAW

1.   The applicant, in his application of 23 April 1970 complained that the

Austrian courts did not decide within a reasonable time upon his requests for

release pending trial and, therefore, violated Article 5 (4) (Art. 5-4) of the

Convention. On 2 February 1971, the applicant, however, informed the

Commission that, in the light of the Government's observations on the

admissibility of the application, he wished to withdraw his above complaint.

The Commission finds that there are no reasons of a general character

affecting the observance of the Convention which would necessitate a further

examination of this complaint, and it therefore accepts the applicant's

withdrawal.

2.   The applicant further complained that the criminal proceedings opened

against him in Austria were not conducted with sufficient speed and that he

was thus not tried within a reasonable time within the meaning of Article 6

(1) (Art. 6-1) of the Convention. The Commission first notes, and it is not

disputed, that the proceedings against the applicant began with his arrest on

23 January 1969 and ended with his final conviction by the Supreme Court and

the deliverance of its written judgment of 18 November 1970. The period to be

taken into consideration therefore comprises one year, nine months and three

weeks. The investigation of the crime of which the applicant was charged was

not concluded until 20 October 1969, although the authorities were in

possession of the applicant's confession. The indictment as filed with the

Public Prosecutor on 18 November 1969. The applicant's trial opened on 9

February 1970 and ended with his conviction by the Vienna Regional Court on 10

February 1970. The Supreme Court gave its judgment on 8 October and the

written text was served on the applicant on 18 November 1970.

The Commission further finds it undisputed that the applicant himself had

totally lost his memory with regard to the details of the incident which

consequently had to be reconstructed by the Investigating Judge. For this

purpose, a criminological examination and the opinion of an expert in forensic

medicine were requested by the Judge on 29 January 1969 and these were

received on 14 July 1969. This opinion was also necessary as on it depended

the qualification of the applicant's offense under the Austrian Penal Code.

Apparently only such an examination could clarify the question whether the

applicant had committed the offense of murder under Article 134 of the Penal

Code or the offense of murder at the request of the victim (Tötung auf

Verlangen) under Article 139a of the Code.

It was furthermore necessary to carry out a psychiatric examination of the

applicant. The Commission, therefore, is of the opinion that the length of the

proceedings was not, in all these circumstances, unduly long and that

therefore this complaint of the applicant is manifestly ill-founded within the

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

3.   The applicant, finally, complains that, due to the application of Article

180 of the above Code, which provides for an obligatory detention on remand in

cases similar to the applicant's, he had been kept in detention for an

unreasonably long period, and that thus Article 5 (3) (Art. 5-3) of the

Convention had been violated. The applicant complains, in this respect, that

the Austrian courts wrongly interpreted Article 194 of the same Code which,

according to the applicant, authorises the Court of Appeal to release a person

detained in remand under Article 180 of the said Code.

The respondent Government objected that, in this respect, the applicant had

not exhausted his remedies under Austrian law and had thus not complied with

the provisions of Article 26 (Art. 26) of the Convention. The applicant

contested this and stated that he had brought his case before the Court of

Appeal (Oberlandesgericht) by means of complaint against his detention under

the Austrian Code of Penal Procedure (Haftbeschwerde), and that no other

remedy existed. The respondent Government, however, submitted that such

complaints were not be to considered as being effective remedies under the

Convention, since detention on remand was obligatory in a case like the

applicant's and even the Court of Appeal could not grant his release. The

Government appears to conclude from this that the applicant had not exhausted

the remedies available to him.

The Commission has had regard to the situation under Austrian law which

provides one single remedy against detention on remand, namely the above

formal complaint under the Code of Penal Procedure. Having noted the uniform

practice of the Austrian courts under Article 180 of this Code, with regard to

the obligatory detention on remand and the submissions of the respondent

Government, the Commission finds that this remedy, could not, in the present

case, be considered to be effective under "the generally recognised rules of

international law", as mentioned in Article 26 (Art. 26) of the Convention; in

particular, detention on remand was obligatory in the applicant's case and

release could not be granted by the courts.

The Commission considers irrelevant in this respect the argument put forward

by the applicant that the Austrian courts wrongly interpreted the provisions

of the above Code and that the Court of Appeal, by virtue of Article 194 of

the Code, could release a person even if he was charged with a crime for which

the law fixes a life sentence. The Commission finds that it has to accept, as

a fact, the common interpretation of Article 194 by the Austrian judiciary

which was confirmed by the respondent Government as being generally accepted

and applied in Austria, namely that, as indicated above, the Court of Appeal

could not grant the applicant's release under Article 194 of the Code.

Accordingly, the Commission is satisfied that the applicant had not at his

disposal any remedy within the meaning of Article 26 (Art. 26) of the

Convention and, consequently, this part of the applicant cannot be rejected

under this Article for non-exhaustion of domestic remedies.

With respect to the substance of this last complaint by the applicant, the

Commission first has regard to the terms of 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".

When considering whether this applicant's detention on remand was reasonable,

the Commission has in mind the case-law of the European Court of Human Rights

(see Eur. Court H.R., "Wemhoff" Case, judgment of 27 June 1968; Eur. Court

H.R. "Neumeister" Case, judgment of 27 June 1968; Eur. Court H.R. "Matznetter"

Case, judgment of 10 November 1969; Eur. Court H.R., "Stögmüller" Case,

judgment of 10 November 1969)  In the "Neumeister" Case, paragraphs 3 and 4 of

"THE LAW" of the judgment of 27 June 1968, the European Court of Human Rights

stated as regards Article 5 (3) (Art. 5-3) of the Convention: "The Court is of

the opinion that this provision cannot be understood as giving the judicial

authorities a choice between either bringing the accused to trial within a

reasonable time or granting him provisional release even subject to

guarantees. The reasonableness of the time spent by an accused person in

detention up to the beginning of the trial must be assessed in relation to the

very fact of his detention. Until conviction he must be presumed innocent, and

the purpose of the provision under consideration is essentially to require his

provisional release once his continuing detention ceases to be reasonable".

Consequently, the Commission's finding under 2, above, that the criminal

proceedings against the applicant were not unreasonably long does not

necessarily mean that since the obligation of the courts to release a detained

person pending trial still exists in the case where such a trial is held

"within a reasonable time" [Article 5 (3) (Art. 5-3)].

In considering the reasonableness of the period of the applicant's detention

on remand, the Commission, according to the above jurisprudence of the

European Court, has examined the reasons given by the Austrian courts in their

decisions on the applicant's requests for release. It follows from these

decisions that it is common ground between the parties that the usual reasons

for detention on remand did not exist in the applicant's case:  the applicant

was totally paralysed and, consequently, there was no risk of his absconding

or of his committing further offenses; the applicant had fully confessed to

the offense and there were no witnesses of the incident, and, consequently,

there was no risk of collusion with other persons. The sole ground for the

applicant's detention was the existence of Article 180 of the Austrian Code of

Penal Procedure which orders obligatory detention on remand in cases where the

person concerned is charged with a crime for which the law provides a minimum

penalty of ten years' imprisonment.

The Commission, therefore, finds that, in the light of the submissions of the

parties, the applicant's complaint about his detention on remand raises an

important issue concerning the application and interpretation of the

Convention whose determination should depend upon an examination of the merits

of this part of the application. Accordingly, this complaint cannot be

considered as being manifestly ill-founded within the meaning of Article 27,

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

For these reasons the Commission

(1)  DECIDES TO DISCONTINUE THE EXAMINATION OF THE APPLICANT'S COMPLAINT UNDER

ARTICLE 5 (4) (Art. 5-4) OF THE CONVENTION;

(2)  DECLARES INADMISSIBLE THE APPLICANT'S COMPLAINT AS TO THE LENGTH OF THE

CRIMINAL PROCEEDINGS AGAINST HIM;

(3)  DECLARES ADMISSIBLE THE PART OF THE APPLICATION THAT RELATES TO THE

PERIOD OF THE APPLICANT'S DETENTION ON REMAND.