THE FACTS

The facts of the case as submitted by the applicant may be summarised

as follows.

The applicant is an Austrian citizen, born in 1917 and at present

detained in the special prison hospital of Vienna (Inquisitenhospital).

By judgement of the Regional Court (Landesgericht) of Vienna of 10

February 1970, the applicant was convicted of murder and was given a

five years' sentence. The applicant was alleged to have 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 led the exhaust fumes into

the interior of his car. The applicant, however, survived this but his

mistress died. The post-mortem examination of her corpse revealed that

she had died of carbon monoxide poisoning. The applicant himself was

badly injured; he is paralysed and has been detained since then in the

above prison hospital.

The above judgment was publicly pronounced on 20 February 1970, but it

appears, however, that the written judgment has only been 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 in possession of the written judgment, no further

steps could be taken by him and the Supreme Court was not in the

position to decide on the appeal.

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

to release the applicant from custody. He maintained that there were

no reason 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 no witness

existed,  and finally it was emphasised that a danger of the applicant

committing further offenses was excluded, since he had acted in an

emergency situation and because he was not capable of doing anything.

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, in the meanwhile, had been convicted by the Court of

First Instance and 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 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. 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".

The Court of Appeal, in the applicant's case, found that the length of

the detention on remand was not unreasonably long in view of the nature

of the crime and that thus the custody of the applicant for one and a

half years was justified under the Convention.

The applicant now complains:

- that this detention in a prison hospital constitutes inhuman

treatment within the meaning of Article 3 of the Convention:

- 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

offence or fleeing after doing so"; the applicant alleges that,

consequently, Article 5 (1) (c) has been violated;

- 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 Austrian

Code of Penal Procedure. He alleges in this respect that he has not

been tried within a reasonable time since it took more that three

months to obtain the written judgment from the trial court;

- that the Austrian courts did not decide within a reasonable time upon

his request for release pending trial;

- that Article 6 (1) has been violated since the length of the

proceedings in such a simple case was not justifiable.

THE LAW

Whereas the applicant first complains that his detention in  a prison

hospital constitutes inhuman treatment within the meaning of Article

3 (Art. 3) of the Convention; whereas, however, the Commission is of

the opinion that in the circumstances of the case the applicant's

detention in the prison hospital does not constitute inhuman treatment,

having regard to the normal sense of this expression and having regard

to the Commission's interpretation of this expression in previous

cases;

Whereas, therefore, the Commission finds that an examination of this

complaint does not disclose any appearance of a violation of Article

3 (Art. 3) thereof; whereas, it follows that this part of the

application is manifestly ill-founded within the meaning of Article 27,

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

Whereas the applicant further complains that his detention on remand

was not justified since no reasons existed, which necessitated his

being remanded in custody; whereas the applicant alleges in this

respect that no danger of his absconding, or of his committing further

offenses, could be established and that no risk of collusion could be

presumed as he had confessed to the crime and no witnesses existed;

Whereas the applicant alleges that his detention consequently violates

Article 3 (1) (c) (Art. 3-1-c) of the Convention; whereas the terms of

the said Article provides as follows:  "... No one shall be deprived

of his liberty save in the following cases and in accordance with a

procedure prescribed by law: ... (c) the lawful arrest or detention of

a person for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an offense or

when it is reasonably considered necessary to prevent his committing

an offence of fleeing after having do so"; whereas the Commission finds

that, in view of the applicant having confessed to the crime of which

he was charged, there was clearly such "reasonable suspicion" fully

justifying his detention; whereas it follows that this part of the

application is manifestly ill-founded within the meaning of Article 27,

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

Whereas, the applicant further complains that he was refused release

pending trial by the Austrian courts because of their established

practice of not granting release pending trial where the accused person

is charged with a crime for which the law fixes a minimum penalty of

ten years' imprisonment; whereas he alleges that this refusal of

release violated Article 5 (3) (Art. 5-3) of the Convention;

Whereas he also complains that the Austrian courts did not decide with

a reasonable time upon his request for release pending trial;

Whereas finally, the criminal charge against him was not determined

within a reasonable time, within the meaning of Article 6, paragraph

(1) (Art. 6-1), of the Convention;

Whereas questions are here raised as to whether there has been an

interference with the rights guaranteed by the Convention;

Whereas the Commission finds that an examination of the file at the

present stage does not give the information required for determining

the question of admissibility; whereas, therefore, the Commission

decides, in accordance with Rule 45, 3 (b), of its Rules of Procedure,

to give notice of these complaints to the Government of Austria and to

invite it to submit its observations on the question of admissibility;

Whereas in the meanwhile, the Commission decides to adjourn its

examination of these parts of the application;

Now therefore the Commission

1. Declares inadmissible, for the reasons stated above, the complaints

relating to Articles 3 and 5 (1) (c) (Art. 3, 5-1-c) of the Convention;

2. Decides to adjourn its examination of the admissibility of the

applicant's remaining complaints.