THE FACTS

Whereas the facts of the case may be summarised as follows:

The applicant is a German citizen, born in 1911, and at present

resident in U. He is represented by Dr. L. H. Farnborough, a lawyer

practising in Düsseldorf and acting under a power-of-attorney dated 30

April 1970.

On 2 December 1968 he lodged with the European Commission of Human

Rights an application under Article 25 of the Convention relating to

his conviction and sentence by the Regional Court (Landgericht) of A.

for fraud and the court proceedings concerned. Under the same

application, Mr. Z., the applicant's son-in-law, made certain separate

complaints alleging that he was himself the victim of violations of the

Convention as a result of the violations relating to the applicant.

From the statements and documents submitted it appeared that on ..

November 1967 the applicant was convicted by the Regional Court of A.

on seven counts of fraud and sentenced to 27 months' imprisonment. His

appeal (Revision) against this judgment to the Federal Court

(Bundesgerichtshof) was rejected on .. August 1968 as being clearly

ill-founded. On .. November 1968 he also made a constitutional appeal

(Verfassungsbeschwerde) to the Federal Constitutional Court

(Bundesverfassungsgericht) which, however, he did not pursue after he

had been advised by letter of 15 November 1968 from a judge of the

Constitutional Court that his appeal appeared to be inadmissible.

In his application to the Commission the applicant alleges violations

of Article 6, paragraphs (1), (2) and (3) (b), (c) and (d), of the

Convention. He maintained, in particular, that he was wrongly convicted

and sentenced, that he did not have a fair hearing before the A.

Regional Court, that the Court denied him adequate time and facilities

for the preparation of his defence, and that he was denied the right

to defend himself in person or through adequate legal assistance.

The applicant further maintained that he did not have a hearing of his

case within a reasonable time in that it had taken the A. Regional

Court more than six years to bring him to trial. He explained that the

police started to investigate the charges against him in July 1961 and

that in 1963 a preliminary judicial investigation was held before the

investigating judge. The trial opened on .. October 1967, and ended on

.. November 1967, with his conviction and sentence. The applicant

alleged that this delay of more than six years had not been necessary

since the investigations by the police had not taken more than one

year, at the most, and the preliminary judicial investigation had

lasted eight weeks only. Moreover, having been obliged to wait for his

trial during that period had been detrimental to his health and

financial position, and also to his chances of acquittal as the

witness' memory had become more and more unreliable.

Whereas the proceedings before the Commission may be summarised as

follows:

The Commission considered the applicant's and Mr. Z.'s complaints on

5 February 1970. On that day it declared inadmissible by partial

decision certain parts of the application. It found that the

applicant's complaints concerning his conviction and sentence were

manifestly ill-founded (Article 27, paragraph (2), of the Convention)

and that with regard to the alleged refusal by the courts of adequate

time and facilities for the preparation of his defence and the alleged

denial of a fair hearing the applicant had failed to exhaust domestic

remedies (Articles 26 and 27 paragraph (3) of the Convention). The

Commission further rejected the applicant's complaints concerning his

lawyer as being incompatible with the provisions of the Convention

(Article 27 paragraph (2) of the Convention) insofar as these

complaints were directed against the lawyer as such, and as being

manifestly ill-founded (Article 27 (2)) insofar as they could be

examined in relation to Article 6, paragraph (1), of the Convention.

The Commission also found that all the complaints made by Mr Z. were

manifestly ill-founded (Article 27, paragraph (2), of the Convention).

However, insofar as the applicant's complaints under Article 6,

paragraph (1), of the Convention related to the length of the criminal

proceedings against him the Commission decided, in accordance with Rule

45 (3) (b) of the Rules of Procedure, to give notice thereof to the

Government of the Federal Republic of Germany and to invite the Parties

to submit observations in writing on the admissibility of that part of

the application. The Commission further decided to grant the applicant

legal aid under the Addendum to its Rules of Procedure.

Whereas in his application form, in his written submissions and at the

oral hearing on 17 July 1970, the applicant alleged a violation of

Article 6, paragraph (1), of the Convention in that he was not brought

to trial within a reasonable time.

Whereas the respondent Government has replied to this allegation in its

written observations of 9 April 1970 and at the oral hearing on 17 July

1970:

Whereas the submissions of the Parties may be summarised as follows:

1. The respondent Government first explained the factual background of

the criminal proceedings against the applicant. According to the

Government's submissions the applicant together with two others (MM.

K. and H.) founded in 1958 the Saxony G.m.b.H. Co. KG, a company whose

object was the sale of music boxes to private persons. The boxes were

acquired from a Mr. M. a manufacturer at D., and sold at prices varying

from 4.500 to 4.700 DM mainly to persons in low income groups. They

were financed by banks which advanced the purchase price in return for

bills of exchange drawn by the Saxony and accepted by the purchasers

concerned. The titles to the music boxes were assigned to the banks as

a security. The company made certain service contracts

(Betreuungsverträge) with the buyers by which it undertook to install

the boxes in restaurants, collect the money inserted therein and

service the boxes. It was originally intended that the bills of

exchange should be paid from the money inserted in the music boxes.

This, however, proved impossible as the proceeds were insufficient to

meet the amounts which were currently due for payment on the bills of

exchange. As furthermore the company had started its business with

hardly any capital of its own and had no further financial resources

from which it could draw in order to pay the bills of exchange, the

applicant decided to raise the necessary funds by increasing the sale

of music boxes.

Together with Mr. M. and two others (MM. K. and R.)  the applicant

developed a new system under which letters describing the music boxes

("Automatenbriefe") were handed over to the banks as security for the

loans received. In 236 cases the boxes described in these letters had

not yet been constructed.

In April 1961 the company's insolvency became apparent on account of

the increasing number of bills of exchange which were left unpaid. By

that time the company had received over four million Marks from the

fourteen banks involved as a result of the system of "advance

financing" described above. On .. April 1961 the company broke down

completely. Applications for the opening of bankruptcy proceedings

were dismissed by decisions of the District Court (Amtsgericht) of G.,

dated .. June and .. August 1962, on the ground that owing to a lack

of assets not even the costs of the bankruptcy proceedings would be

covered.

The respondent Government next set out the procedural steps with regard

to the criminal proceedings against the applicant. The Government also

submitted a schedule showing the course of the investigations and

criminal proceedings against the applicant and four others (MM. H., K.,

M. and R.).

From these submissions it appears that, immediately after the collapse

of the firm certain buyers laid information against the company to the

effect that they had been defrauded. On 5 July 1961 one of the banks

involved brought charges with the Public Prosecutor's Office

(Distriktstaatsanwaltschaft) at G..

On 17 July 1961 the Regional Office of the Criminal Police

(Landeskriminalpolizeiamt) in O. started its investigations by

questioning the manager of the above bank. It returned the files to the

G. Public Prosecutor's Office on 24 July 1961 which on the same day

made applications to the District Court at G. to issue warrants for the

applicant's arrest and for a search of the company's premises. The

Court, on 25 July 1961, made orders for a search of the premises but

refused to issue any warrants of arrest. The Public Prosecutor's Office

appealed against this refusal on 29 July 1961 but, on 23 August 1961

withdrew its appeal.

On 25 and 27 July 1961 the police searched the company's premises and

seized numerous documents and files.

The applicant was first examined as a suspect on 1 and 2 August 1961.

Subsequently, during the period from 3 August 1961 to 13 June 1962 the

police continued its investigations of the case by examining witnesses

or the applicant's co-accused on the following dates:

3/8/61 - 2 witnesses

4/8/61 - 1 witness

7/8/61 - Mr. K.

9/8/61 - Mr. H.

11/8/61 - 1 witness

14/8/61 - 1 witness

15/8/61 - 1 witness

25/8/61 - Mr. H.

6/9/61 - 3 witnesses

7/9/61 - 1 witness

8/9/61 - 1 witness

9/9/61 - 1 witness

17/10/61 - 13/6/62 - various unspecified witnesses

On 28 August 1962 the office of the criminal Police at Hanover

submitted to the Public Prosecutor's Office attached to the Regional

Court (Landgericht) in Braunschweig a report on the result of its

investigations and, on 6 September 1962 put the entire case-file before

the said Public Prosecutor's Office. On 10 September 1962, the Public

Prosecutor requested the criminal police to examine MM. K., H. and R.

by putting to them the evidence established so far. This was carried

out during the period from 14 September to 29 November 1962 and on 4

December 1962 the record of these examinations was transmitted to the

Public Prosecutor who himself examined Mr. K. once more on 11 December

1962.On 11 January 1963 the Public Prosecutor submitted to the Regional

Court of A. the indictment against the applicant and four other

persons, namely MM. K., R. and M.. The indictment was communicated to

the applicant and his co-accused on 23 January 1963 and on 3 February

1963 the applicant lodged with the Regional Court an application for

a preliminary judicial investigation (gerichtliche Voruntersuchung).

This was refused by the Court on .. March 1963.

On 6 April 1963, the applicant lodged an appeal (sofortige Beschwerde)

with the Court of Appeal (Oberlandesgericht) in A. against this

decision and, on 24 April and 7 May 1963 submitted further grounds of

appeal. In the meanwhile, on 22 April 1963 the case-files had been sent

to H. defence counsel who returned them on 18 June 1963. On 21 June

1963, the Public Prosecutor's Office submitted its observations on the

further grounds of appeal submitted by the applicant and on 24 July and

28 August 1963, counsel action for Mr. R. submitted further grounds of

appeal. Finally, on 5 September 1963, the Court of Appeal in A. allowed

the appeal and ordered the opening of the preliminary judicial

investigations. These were closed on 31 December 1963 and on 24

February 1964 the Public Prosecutor filed with the A. Regional Court

a supplementary indictment. This was communicated to the applicant and

his co-accused on 3 March 1964.

On 9 March and 15 April 1964, respectively, Mr. K. and the applicant

made further applications for a preliminary judicial investigation on

the charges contained in the supplementary indictment. This was refused

by the Regional Court on 14 May 1964 and their appeals to the Court of

Appeal rejected on 14 July 1964.

During this period and subsequently, until 30 January 1965, the files

were with the lawyers of the accused persons or with the Attorney

General (Generalstaatsanwalt) in Düsseldorf in connection with a

decision prohibiting the applicant to exercise his profession as a

certified public accountant (Wirtschaftsprüfer).

On 17 March 1965, the Regional Court decided that proceedings should

be opened against all five accused persons and on 3 May 1965 the

presiding judge of the Court's First Criminal Chamber decided that the

trial should be held from 22 June to 9 July 1965.

However, on 28 May 1965 the Judge, acting upon an application by Mr.

M. to adjourn the hearing, set aside this decision. M. submitted that

he was physically incapable of standing trial and produced medical

certificates to that effect. A similar application was made on 1 June

1965 by Mr. K. On 5 and 10 November 1965 both M. and K.submitted

further medical certificates showing that their state of health had not

improved. It appears that this was confirmed by the Public Health

Office (Gesundsheitsamt) in A.. In any event, on 20 January 1966, the

Public Prosecutor's Office at A. informed the Regional Court that it

was still not possible to begin with the trial owing to M.'s and K.'s

physical condition.

On 31 May 1966 and again on 28 October 1966, the presiding judge of the

Regional Court's First Criminal Chamber requested K. and M. to submit

further medical certificates. They complied on 9 June, 25 June, 22

November and 23 November 1966 and, on 5 December 1966 and 17 January

1967, they also submitted certificates from the Public Health Office

at G. to the effect that they were not capable of standing trial.

On 23 January 1967, the Public Prosecutor's Office at the A. Regional

Court proposed that the proceedings against K. should be detached and

that a new date for the trial should be fixed as regards the others.

The Office further proposed that the trial should not be held before

October/November 1967 in view of the continuing incapacity to stand

trial of M.. In accordance with these proposals the presiding judge

decided on 23 June 1967 that the trial should be held from 16 October

to 14 November 1967. The Regional Court then decided on 19 September

1967, that the proceedings against K. should be detached and

provisionally discontinued in accordance with Article 205 of the Code

of Criminal Procedure (1). Similar decisions were taken on 4 and 5

October 1967 with regard to M. and R..

-------------------------

(1) Article 205 of the Code of Criminal Procedure provides: "Where for

a long time it is not possible to conduct the trial owing to the

absence of the accused or to any other impediment relating to him, the

Court may provisionally discontinue the proceedings against him. If

necessary, the presiding judge secures the evidence." ("Steht der

Hauptverhandlung für längere Zeit die Abwesenheit des Angeklagten oder

ein anderes in seiner Person liegendes Hindernis entgegen, so kann das

Gericht das Verfahren durch Beschluss einstellen. Der Vorsitzende

sichert, soweit nötig, die Beweise.")

---------------------------

On 16 October 1967 the trial against the applicant and H. started. It

lasted until 23 November 1967. On that day the applicant was convicted

and sentenced; H. was acquitted. A draft of the decision was prepared

by 15 December 1967 and it was signed on 20 February 1968. Copies of

the decision were available by 5 April 1968 and on 24 April 1968 the

decision was communicated to the applicant.

In the meanwhile, on 29 and 20 November 1967 the applicant had lodged

with the Federal Court (Bundesgerichtshof) an appeal (Revision) against

his conviction and sentence, and on 27 May 1968 he submitted the

grounds of his appeal (Revisionsbegründung). The appeal was rejected

by the Federal Court on 23 August 1968 as being clearly ill-founded

(Article 349, paragraph (2), of the Code of Criminal Procedure).

The respondent Government submitted that, on the basis of these facts,

the applicant's complaint regarding the length of the criminal

proceedings against him is manifestly ill-founded.

The Government first submitted that, in accordance with the judgment

of the European Court of Human Rights in the "Wemhoff" and "Neumeister"

cases, and the Commission's Report on the Soltikow case, the period

which should be taken into consideration when assessing the

reasonableness of the length of the criminal proceedings within the

meaning of Article 6 (1) of the Convention, started to run on 11

January 1963, being the date on which the first indictment was served

on the applicant. According to the Government, this was the date on

which charges were first levelled against him and this was also the

correct starting point with regard to German law as, up to the service

of the indictment on the accused person, the Public Prosecutor's Office

has the possibility of discontinuing the criminal proceedings without

obtaining the decision of a court in this respect.

The Government further submitted that the period concerned ended on 23

November 1967, being the date on which the charges against he applicant

were determined by the Regional Court of A. It was true that the

applicant made an appeal to the Federal Court which was rejected on 23

August 1968. However, the Federal Court did not rule on the question

whether or not the charge was well-founded, but only decided certain

questions of law. Consequently, the date of that decision could not be

taken into account when considering the question of "reasonable time"

within the meaning of Article 6, paragraph (1), of the Convention.

However, even assuming that the period during which the appeal was

pending should also be considered in this connection, it should be

pointed out that the judgement comprised 185 pages and that,

consequently, a period of ten months was not excessive, considering

that it had been necessary to prepare for appeal proceedings on a

subject matter so voluminous and complex.

The Government then made submissions relating to the extent and the

complexity of the proceedings concerned and finally dealt with the

question of separating from the proceedings against the applicant the

charges against three of his co-accused.

As regards the extent of the proceedings the Government submitted that

the applicant was charged with having committed frauds against thirteen

banks causing losses of over 4.1 million marks; also with having

committed various forgeries and, in thirty cases, breach of trust and

falsifying documents by changing the serial numbers on several music

boxes in order to obtain a second credit on boxes on which credit had

already been given. It was true that, in the end, the applicant was

only convicted of seven counts of fraud, but this did not mean that the

extend of the proceedings was any less.

Furthermore, the papers and files which had to be sifted and evaluated

by the prosecuting authorities and courts consisted altogether of eight

volumes of records containing over 2,000 pages, 104 files, four

business books, one ledger as well as various boxes of index and other

cards. In spite of this, it had been possible to file the indictment

only about 11/2 years after the investigations had started, and it was

owing to the fact that the applicant and his co-accused had twice

requested a preliminary judicial investigation or that the files had

been transmitted to defence counsel for examination, that the decision

to open the trial was not taken before 17 March 1965, i.e. about two

years and two months after the first indictment had been filed and

about one year and one month after the filing of the supplementary

charges.

As regards the complexity of the case, the Government pointed out that

the prosecuting authorities and courts were required to examine a large

number of financial transactions which was difficult to evaluate both

in respect of the facts and of the legal implications. In fact, the

company had sold about 1,500 music boxes for each of which existed an

application for credit to the bank or banks concerned, several bills

of exchange signed by the buyers, a complicated contract concerning the

servicing of the boxes by the company, and finally the records of the

receipts from money inserted in the music boxes. It was necessary to

examine in detail all these transactions in order to prove the

applicant's criminal intent and both the courts and the applicant's

lawyer himself had repeatedly confirmed the complex nature of the

proceedings concerned.

Finally, as regards the question of the separation of the proceedings,

the Government pointed out that in the beginning it had not been clear

how long the co-accused persons K. and M. would be ill and thus not fit

to stand trial, since this did not already emerge from the medical

certificate submitted. Moreover, it did not appear suitable in the

beginning to conduct the trial without them as all five accused persons

incriminated each other and it would have been considerably more

difficult if not impossible, to establish the truth if even one had

been missing.

Only in December 1966 and January 1967 had it become clear that both

K. and M. would not be fit to stand trial for some time, and the

question of R.'s fitness to stand trial had not come up until September

1967 after he had suffered a heart attack.

However, all three co-accused persons agreed to appear before the Court

and give evidence as witnesses and it was only then possible

provisionally to discontinue and proceedings against them and fix a new

date for the trial of the applicant and H..

The Government therefore submitted that, in the circumstances, it was

not possible to hold the authorities and courts responsible for the

delays that did, in fact, occur and it submitted that the remainder

of the application should also be declared inadmissible.

The Government also intimated that, if the Commission were to consider

the applicant's allegations concerning the length of the proceedings

in relation to an alleged denial of a "fair" hearing within the meaning

of Article 6 (1) of the Convention, the question arose whether or not

the applicant had exhausted the domestic remedies in accordance with

Article 26 of the Convention as he had failed to make, in proper form,

a constitutional appeal to the Federal Constitutional Court.

2. The applicant first submitted that the period to be considered under

Article 6, paragraph (1), of the Convention in determining the actual

length of the proceedings against the applicant began to run on 5 July

1961, being the date on which these proceedings were actually started.

He also compared generally the German system of criminal procedure with

that in England and submitted that a delay of altogether 61/2 years in

bringing an accused to trial would not have been possible under the

English system.

The applicant then dealt with the procedural steps taken with regard

to the criminal proceedings against him and referred, in particular,

to the chronological survey submitted by the respondent Government. In

this connection he pointed to specific periods during which, in his

opinion, the authorities handled the case in such a manner as to cause

a delay of the proceedings.

The applicant first considered the period between 5 July 1961 and 11

January 1963, being the date on which the indictment was served on him,

i.e. a period of altogether eighteen months.

He noted that between 17 October 1961 and 13 June 1962, i.e. during a

period of about eight months, various unspecified witnesses had been

heard and regretted that the exact number had not been communicated.

Assuming that about 100 witnesses were heard in view of the fact that

the record comprises some 300 pages it should have been possible to

examine these witnesses within two or three months. Consequently there

was an unnecessary delay of about five to six months. The applicant

also referred to the fact that the police only submitted its report on

28 August 1962, i.e. two and a half months after their investigations

had been closed. He considered this period as being excessive for the

preparation of a report comprising 46 pages.

The applicant himself then observed that four of the accused persons,

namely K., H. and R. as well as the as the applicant himself, were

re-examined by the police during the period from 14 September to 29

November 1962 pursuant to the Public Prosecutor's request of 10

September 1962. He submitted that two days per person would have been

sufficient and that, consequently, two months were wasted.

Furthermore, after the investigations by the criminal police had been

terminated on 4 December 1962, i.e. one year and five months after they

had begun, the prosecution authority needed less than a month, taking

into account the Christmas recess, to check the relevant material and

come to a decision, submitting the indictment on 11 January 1963.

The applicant next considered the period between 11 January 1963 and

22 June 1965, being the date for which the trial had originally been

fixed, and submitted that there had been considerable delays during

this period of altogether two and a half years.

He pointed out that it had taken the courts seven months, namely from

3 February 1963 to 5 September 1963, to arrive at a decision to open

a preliminary judicial investigation which itself lasted only two and

a half months, namely from 11 October to 30 December 1963. He

considered again that about five to six months were wasted here.

Subsequently, after the application for a second preliminary judicial

investigation had been finally refused on 17 July 1964, the decision

to open the proceedings had only been taken on 17 March 1965, i.e.

eight months later. The applicant considered that this period was

completely wasted since no action was taken during that time. In

particular, the sending of the files to the Attorney General in X. for

a decision prohibiting the applicant to exercise his profession as

certified public accountant, was a complete waste of time as the

authorities and courts should have known that, in view of the fact that

the criminal charges against the applicant had not yet been determined,

such a decision was not only premature but also inadmissible.

The applicant finally referred to the period between 24 May 1965 and

4 October 1967 during which it was, according to the Government, not

possible to start the proceedings against him owing to the illness of

his co-accused. The applicant submitted that the authorities and courts

should have realised, at least by 1 June 1965, when further medical

certificates were submitted by the persons concerned, that it would not

be possible to proceed against MM. M. and K.. They should thus have

taken steps to separate these proceedings from the remainder. Even when

in January 1967 it became obvious that it was not possible to proceed

against Mr. M., the proceedings against this accused were not detached,

but, instead, it was proposed to have the trial as late as

October/November 1967. Only in October 1967 did the authorities decide

to proceed against the applicant and H. without the others and the

applicant submits that this decision could have been taken much sooner.

The prosecution authorities and the Court should have taken cognisance

of the right to trial within a reasonable time as guaranteed by Article

6, paragraph (1), of the Convention. They should have decided, at an

early stage of the proceedings, to arrange a separate trial for the

applicant, such separation being possible, under Article 4, paragraph

(1), of the Code of Criminal Procedure, at any stage of the

proceedings. In particular, it should have been clear that such a

decision was required in view of the fact that, as from the beginning,

the medical certificates submitted to the Court indicated that it was

not possible to say when the patients' health would be restored. On the

other hand, it was not for him to make an application for the

separation of the proceedings against him from those against the other

accused persons, as it was not in his interest to face the charges

alone concerning acts for which they were, if at all, together

responsible.

Moreover, the fatal consequence of the delay in bringing the applicant

to trial was to be seen, in particular, at the trial itself. For the

accused persons who were incapable of standing trial did, in fact,

appear as witnesses at the applicant's trial when it finally took place

in October/November 1967.

However, it was only possible to examine Mr. M. for 20 minutes, Mr. K.

for 25 minutes, and Mr. R. for 30 minutes. They were physically unable

to give any further evidence and, in particular, were not available for

cross-examination. Another important witness, the applicant's

secretary, in the meanwhile had been committed to a mental institution

and her evidence was worthless. Furthermore, two important witnesses

had died and a considerable number of witnesses states at the trial

that they were unable to remember details of the case seven years after

the events had occurred.

In the applicant's submission these considerations are important for

an examination of the case under Article 6, paragraph (1), of the

Convention.

The applicant finally submitted arguments distinguishing his case from

the "Neumeister" case where the European Court of Human Rights, in its

judgment of 27 June 1968, had decided that a period of more than seven

years was, in the circumstances of that case, not excessive. The

applicant referred to the European Court's statement to the effect that

seven years "indicates an exceptionally long period which in most cases

should be considered as exceeding the reasonable time laid down in

Article 6 (1)". (Eur. Court H.R., "Neumeister" Case, judgment of 27

June 1968, para. 20 of THE LAW). Nevertheless, the Court found no

violation of that provision by reason of the fact that the "Neumeister"

Case was of extraordinary complexity, that delays were to a large

extent caused by the need of defence counsel and the judges concerned

with the case record which comprised 21 volumes of about 500 pages each

as well as a large number of other documents, and that there was no

suggestion that a severance of Neumeister's case from those of his

co-accused would have been compatible with the good administration of

justice. The applicant submitted that these considerations were not

applicable in the present case.

In the first place, the case was not as complicated as the "Neumeister"

case. This was clear from the fact that the Regional Court in A. found

the applicant guilty on only six counts of fraud having induced six

banks to finance 47 (not 236) non-existent music boxes thereby

inflicting a loss of altogether 140,000 DM, and one count of fraud

vis-à-vis a third person, having induced that person to invest in the

company at a time when it was already insolvent. The applicant

submitted that what is important when examining the complexity of a

case is not what the prosecution tries to prove but what the accused

person has, in fact, done as established by the Court.

Furthermore, with regard to the charges relating to the sale of

non-existent music boxes, there was evidence given by the liquidator

of the company to the effect that the books and documents were in

perfect order at the time when bankruptcy proceedings were opened. The

police could have terminated their investigations within a few months

as it had only been necessary to examine the purchase contracts between

the company and Mr. M., the manufacturer, in order to find out, on

which contracts music boxes had been delivered and on which delivery

was still outstanding.

In the second place, the case was not as voluminous as the "Neumeister"

case. In this connection the applicant submitted that reference to the

amount of the material sifted and evaluated by the prosecuting

authorities was not relevant unless it was shown, in the light of the

Court's judgment concerning conviction and sentence, that it had been

necessary to do all this work.

The applicant finally submitted that, contrary to the "Neumeister"

case, it would have been compatible with the good administration of

justice to separate at an early date the proceedings against the

applicant from those against MM. K. and M., who - as the prosecution

and the trial court knew - were so seriously ill that they would not

be able to stand trial for a considerable time.

The applicant also referred to the judgment of the European Court of

Human Rights in the "Wemhoff" case and to the dissenting opinion of

Judge Zekia in the "Neumeister" case.

He submitted that the Commission should declare admissible the

remainder of his application.

THE LAW

Whereas Article 6, paragraph (1) (Art. 6-1), of the Convention provides

as follows:

"In the determination of any ... criminal charges against him, everyone

is entitled to a .... hearing within a reasonable time by (a) ..

tribunal ..";

Whereas the applicant alleged that the length of the proceedings

against him deprived him of a hearing within a reasonable time in

accordance with that provision; whereas the respondent Government

submitted that, in view of the extent of the complexity of the case

concerned and of the fact that the applicant's case was carried out

with the greatest possible expedition, the period concerned was not

excessive and unreasonable and that this part of the application was

therefore manifestly ill-founded within the meaning of Article 27,

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

Whereas 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 to reject a complaint whose lack of

foundation cannot be so described (see the Commission's constant

jurisprudence, e.g. Application No. 2294/64, Yearbook, Vol. VII, pages

348, 354);

Whereas, in the present case, the Commission has carried out a

preliminary examination of the information and arguments submitted to

it by the Parties with regard to the applicant's above complaint;

Whereas the Commission finds that this complaint is of such complexity

that its determination should depend upon an examination of its merits;

whereas, therefore, it cannot be regarded as manifestly ill-founded

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

Convention;

Whereas if follows that the applicant's complaint under Article 6,

paragraph (1) (Art. 6-1), of the Convention relating to the length of

the criminal proceedings against him cannot be declared inadmissible

on that ground; and whereas no other ground for declaring this part of

the application inadmissible has become apparent;

Now therefore the Commission

Declares admissible and retains, without in any way prejudging the

merits of the case, the applicant's complaint relating to the length

of the proceedings against him (Article 6, paragraph (1) (Art. 6-1),

of the Convention).