THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is an Austrian citizen born in 1926 and at present

resident in Vienna. He is represented by his lawyer Dr. S.

I. On .. February, 1948, the applicant's uncle, aunt and infant nephew

were found dead in their bedroom. A revolver was found on the floor

beside the body of Maria F., the applicant's aunt, and a scribbled

message on her bedside table. Further inquiries showed that she was,

and has reason to be, jealous on account of her husband's relations

with other women. It was accordingly assumed that she had shot her

husband and child and then committed suicide.

On .. June, 1949, the applicant, together with his mother and another

uncle, were imprisoned on suspicion of having stolen certain supplies

which has been deposited in their barn by a Vienna firm during the war.

A principal informant in the enquiries leading to this arrest was J.,

the brother of the applicant's aunt Maria F.

On .. July, 1949, 17 months after the crime, J. reported to the police

that when washing the body of his sister Maria he had found a bullet

in her hair. A letter was then drawn up in the police station by

officials who were investigating the other charge against the

applicant, signed by J. and sent to the public prosecutor's office in

Korneuburg. This report, which suggested that the applicant and his

mother were responsible for the murder, let to investigations being

opened against the applicant.

The impartiality and reliability of J., who later gave evidence against

the applicant at his trial, were strongly criticised by an

investigation commission (F. Commission) which was subsequently set by

the Ministry of Interior to investigate the case. Apart from his

allegation as to having found the bullet, J. made allegations, which

were believed by the trial court, suggesting that the applicant had

procured the message found on Maria F.'s bedtable in the course of a

party game 1 1/2 years previously. It appears that these allegations

were first made after the investigating police had obtained four expert

opinions to the effect that the message was in fact in the handwriting

of Maria F. and had not been copied by the applicant as he had alleged

in a confession which he later withdrew.

On .. November, 1949, the applicant was subjected to an examination by

police officials who are described in the report of the F. Commission

as having been young and inexperienced. The examination began at 2 p.m.

on .. November and continued until 2 a.m. on the following day, without

a break. After having indicated that he was exhausted and asked for a

rest which was refused, the applicant made a confession. This

confession was inaccurate in describing the details of the crime and

was withdrawn by the applicant three weeks later. The applicant stated

at the time and has at all times maintained that his motive in making

this confession was to clear his mother who was then under suspicion

of a capital offence. There is conflicting evidence as to whether his

fears in this respect were provoked or exaggerated by pressure from the

examining officers. On being taken back to his cell the applicant

attempted to commit suicide by cutting his wrists. The next day he was

taken before the examining judge before whom he repeated his

confession. On .. November the record of his examination before the

police was prepared and signed by the applicant. This record follows

closely that made by the examining judge on .. November but

incorporates some corrections, in particular with regard to the

position in which the child was shot.

On .. December, 1949, the applicant revoked his confession and has

since then at all times maintained his innocence.

On .. October, 1950, the applicant was convicted of murder by the

Regional Court (Kreisgericht) of Korneuburg and sentenced to life

imprisonment. His plea of nullity (Nichtigkeitsbeschwerde) from this

decision was dismissed by the Supreme Court (Oberster Gerichtshof) on

.. March, 1951.

II. On .. March, 1953, the applicant applied to the Ministry of Justice

for a retrial. On .. June, 1956, this application was forwarded to the

Attorney-General who subsequently stated that it contained nothing

requiring action by his department. The application was not forwarded

to the court. In 1956 a lawyer, who in the course of other proceedings

had to deal with the facts of the case, addressed two memorials to the

Attorney-General indicating evidence and arguments showing that the

applicant was innocent.

On 30th October, 1959, the applicant put his case before the

Commission. His application (No. 624/59) was rejected on 3rd June,

1960, on the ground that, with the exception of the allegation that the

Central Murder Commission had refused to make a fresh investigation of

his case, all the facts alleged related to a period before 3rd

September, 1958, the date of the entry into force of the Convention

with respect to Austria. Moreover, the refusal of a fresh investigation

did not violate any of the rights and freedoms guaranteed by the

Convention.

On 23rd December, 1960, the applicant, now represented by Dr. S., made

a new application for retrial. As a result of his application new

investigations were made and, in particular, a five-man Police

Commission was appointed by the Ministry of Interior under the

chairmanship of Dr. F. After extensive investigations, this Commission

submitted its report on .. November, 1964, which is critical of the

manner in which the crime was investigated, the reliability of much of

the evidence presented and accepted by the court and the conclusions

arrived at, in particular, as to the guilt of the applicant.

After two visits to the locus in 1963, at neither of which the

applicant was allowed to be present though his lawyer was present on

the second occasion, the court obtained a number of expert opinions in

1964 and 1965. The applicant complains that the written questions

addressed by his lawyer to the expert were vested by the prosecution.

Finally, on .. May, 1966, after what the applicant considers much

inexcusable delay, the Regional Court at Korneuburg set aside the

applicant's conviction on the ground that there was new evidence

available on three points:

-  as to the time of death, an expert medical opinion had established

that with regard to all three victims death had in all probability

occurred before midnight, although the possibility of their having died

later was not entirely excluded. This evidence prima facie excluded the

applicant as a suspect since he had an undisputed alibi until 12.30

a.m. The applicant's lawyer further points out that this expert report

was based on information furnished by the prosecution which suggested

that the victim had eaten later than the approximate times arrived at

by the court hearing the application for retrial;

-  contrary to what had been assumed at the trial, it was now

established by the expert evidence that not only Maria F. but also

Franz F. had received shots from a very short distance (Nahschüsse).

This evidence, taken with the other available evidence, made it

difficult to explain how the victims could have been shot by a third

person and made the theory that Maria F. had shot her husband and child

before shooting herself more plausible. The court also seems to have

accepted as correct certain other deductions by the experts as to the

direction of the shots but did not make this an express ground for

granting a retrial;

-  contrary to what was presumed at the trial, the paper on which the

message found on Maria F.'s bedtable was written was not the same as

certain other paper to which it was known that the applicant had easy

access.

The prosecution appealed against this decision but it was confirmed by

he Court of Appeal (Oberlandesgericht) in Vienna on .. July, 1966.

The applicant was there upon transferred to detention on remand and the

prosecution commenced investigations with a view to retrial. On ..

October, 1966, the prosecution applied for the proceedings against the

applicant to be terminated and on .. October, 1966, the applicant was

finally released, having been imprisoned for a total period of 17

years, 4 months and 10 days.

He complains that the period of detention on remand was unduly

prolonged since it was taken up entirely with the procuring of an

expert opinion which, as should have been foreseen, was entirely

inconclusive, other investigations which were directed not to

establishing the guilt or innocence of the accused but merely to making

a case against the applicant's claim for compensation and, finally, the

delay caused by the absence on holiday of the prosecutor and then of

the court.

III. On .. October, 1966, the Regional Court of Korneuburg rejected the

applicant's claim for compensation during the two periods of detention

on remand from .. June, 1949 to .. March, 1951, and from .. July, 1966

to .. October, 1966, and also the applicant's claim for compensation

on account of his conviction and sentence. The court considered that

the detention and imprisonment was initially justified by the suspicion

of theft and subsequently by suspicion of murder. Taking a somewhat

different view of the evidence from that assumed in the proceedings on

retrial, the court decided that the applicant had not succeeded in

invalidating (entkräften) the suspicion which lay upon him because:

-  although the medical opinions had established the probability that

death had occurred before midnight, the possibility of a later time had

not been entirely excluded;

-  although the expert opinions had established certain matters which

tended to increase the probability that the crime had been committed

by Maria F., this was not sufficient to invalidate the suspicion

resting on the applicant. Moreover, the court found that he had largely

contributed to the suspicion against him and his conviction by his

confession and this in itself was sufficient ground for refusing him

compensation.

The applicant's appeal (Beschwerde) against this decision was rejected

by the Court of Appeal on .. December, 1966. In doing so the Court made

it clear that where there was a difference it followed the findings of

the trial court as being inherently more trustworthy than those of the

subsequent F. Commission, and the subsequent expert opinions, except

on specific points on which the application for retrial had been

granted. Moreover it considered that the conclusion by the court which

granted the retrial application, that Maria F. had her last meal

between 7 p.m. and 7.30 p.m., must also be treated as invalid since

only a trial court was qualified to make such a finding. The court

further drew attention to a number of errors committed by the applicant

and stated finally that one could not speak of a possible error of

justice so long as no material was available on which to base

investigations against third persons who could have committed the crime

independently of the applicant and without his knowledge (von einem

Justizirrtum [kann] so lange nicht gesprochen werden ..., als keine

Anhaltspunkte für den Verdacht und die Ausforschung dritter Personen

vorliegen, die als unabhängig von dem Willen des Beschwerdeführers und

ohne sein Wissen handelnde Täter in Frage kommen).

IV. The applicant alleges violation of Articles 4, 5 and 6 of the

Convention.

Proceedings before the Commission

On 30th May, 1968, the application was examined by a group of three

members of the Commission who unanimously reported that the application

appeared to be admissible. The application was consequently

communicated to the respondent Government for its observations in

writing on the admissibility of the application, in accordance with

Rule 45, paragraph 2, of the Commission's Rules of Procedure.

The Government submitted its observations on 12th October, 1968. The

applicant's observations in reply were received on 21st November, 1968.

Submissions of the parties

The submissions made by the parties with regard to the articles invoked

by the applicant may be summarised as follows:

As to Article 4 of the Convention

1. Question of exhaustion of domestic remedies (Article 26 of the

Convention).

The respondent Government submits that the applicant has not exhausted

the domestic remedies, as he failed to bring an action for damages

against the officials concerned.

The applicant submits in reply that a party bringing such an action

must allege some fault on the part of the officials concerned. The

applicant, however, was not alleging any such fault.

2. Alleged violation of Article 4

The applicant refers to paragraph (2) of Article 4 and complains of the

work which he was forced to perform during the period he was detained

as a convicted prisoner.

The respondent Government submits that:

-  the applicant's detention was lawful, having been imposed by a

competent court in accordance with a procedure prescribed by law;

-  the work required to be done was work imposed in the ordinary course

of detention. The applicant was only required to do such work as is

normally required from convicted persons;

-  the mere fact that the remuneration granted to such prisoners is low

does not, of itself, constitute a violation of this Article

(Application No. 2413/65 - Collection of Decisions, Vol. 23, page 1).

The applicant submits in reply that:

-  his detention was not lawful his conviction having been

retrospectively annulled in accordance with a procedure prescribed by

law with the result that his status was in law the same as that of a

person who had been acquitted;

-  in any case, the legality of his detention is irrelevant since the

work which he was required to do cannot be correctly described as work

normally required from detained persons. In the first place, since in

Austria some convicted persons are not required to work at all (i.e.

persons serving terms of less than one year in court prisons) and

others, i.e. long terms prisoners, are required to work, it is not true

that in Austria convicted persons as a class are "normally" required

to work;

the work imposed, i.e. employment in the book-binding section, cannot

be considered as normal because:

-  it was not suitable to the applicant's level of education as a

college student;

-  it involved working in a position and under conditions which brought

about an affection of the inter-vertebral joints (Spondylarthrose);

-  although the inadequacy of the remuneration may not in itself

constitute a violation of the Convention, it is evidence that the work

imposed was inequitable and unsuitable and carried out against the will

of the person on whom it was imposed.

As to Article 5 of the Convention

1. Question of exhaustion of domestic remedies

The respondent Government submits that the applicant has not exhausted

the domestic remedies since:

-  as regards his detention on remand pending the retrial proceedings,

he failed to apply for release first to the Judges' Chamber

(Ratskammer) of the Regional Court and then to the Court of Appeal;

-  as regards the entire period of his detention - pending trial,

following conviction and pending retrial - he failed to bring an action

for damages against the officials concerned.

The applicant submits in reply that:

-  as regards the possibility, during his detention pending retrial,

of applying for release to the Judges' Chamber and the Court of Appeal,

such application would not have been successful. It is not necessary

to apply to a national court when the result would inevitably be the

repetition of a decision already pronounced (see the case of

Panevezys-Saldutiskis quoted in the Commission's decisions on

Applications No. 514/59 - X. v. Austria - Yearbook of the European

Convention on Human Rights, Vol. III, page 196 and No. 1936/63, ibidem

Vol. III, page 224). In the circumstances the applicant cannot be

blamed for not making a hopeless application, the only effect of which

would have been to further prolong the preliminary investigation and

thus his detention on remand;

-  as regards the possibility of bringing an action for damages against

the officials concerned, a party bringing such an action must allege

some fault on the part of the officials; the applicant, however, was

not alleging any such fault. Until recently (see Oberster Gerichtshof

[Supreme Court] Ev. B; Nr. 232/1967) Austrian jurisprudence has denied

any liability for officials concerned in a case of illegal deprivation

of freedom. Recently the Supreme Court has admitted that damages can

be claimed in such cases where there has been fault on the part of the

officials concerned. But the claim for damages for unlawful detention

under Article 5, paragraph (5) of the Convention is independent of any

fault on the part of the officials concerned,  it is a case of

liability for bringing about a certain state of affairs

(Erfolgshaftung). It is not to be expected that the applicant who has

already taken unsuccessful proceedings at first instance and on appeal

under the laws relating to compensation for detention should now bring

an action for damages for breach of official duty in which he would

have to prove fault on the part of the courts concerned.

2. Alleged violation of Article 5, paragraph (1) (a)

The applicant complains that his detention as a convicted person was

not "lawful" within the meaning of Article 5, paragraph (1).

The respondent Government submits that:

-  the applicant's detention as a convicted person was lawful having

been imposed by a competent court in accordance with a procedure

prescribed by law;

-  subsequent evidence which raises doubts as to the guilt of a

convicted person cannot affect the lawfulness of his imprisonment;

-  an order for retrial was not required to be based on the innocence

of the person concerned nor did it imply that he was innocent;

-  the discontinuation of the prosecution did not prove that the

applicant was innocent but merely that, twenty years after the event,

it was no longer possible to submit sufficient evidence to secure

conviction;

-  there are strong indications that the crime was committed by the

applicant, e.g. the finding by the trial court that it was committed

with his revolver.

The applicant submits in reply that:

-  the arguments advanced by the respondent Government raise the

general question of whether detention is lawful which is imposed by a

judgment which is later annulled. The answer must depend on the result

of the subsequent proceedings. Either these proceedings lead to a

second judgment imposing imprisonment, in which case the original

detention is confirmed and justified, or they lead to an acquittal or

- as in the present case - an abandonment of the prosecution. In this

case the detention is not retrospectively justified. The detention of

the applicant would only have been "lawful" if, on retrial, he had

again been convicted and sentenced to imprisonment. This opinion is

shared by the Federal Ministry of Justice which states in the

Explanatory Observations to the recent draft bill relating to

compensation for criminal detention and conviction (page 18):

"Unjustified prosecution occurs if .... a person who has been convicted

by a judgment which has become res judicata is acquitted in the course

of a new trial; the same applies if the proceedings against him are

discontinued. In these circumstances the detention or conviction - even

though on the state of the evidence at the time it was pronounced such

detention or conviction was in accordance with the law - was in fact

pronounced against an innocent person";

-  in fact the applicant's innocence results clearly from the working

of the order for retrial which rests on three important and mutually

independent conclusions. Moreover the order states expressly (page 15):

"X cannot have murdered the three above-mentioned persons in view of

the fact that he had an unshakeable alibi until 12.30 a.m.;

-  although, as the respondent Government has stated, an order for

retrial does not, generally speaking, presuppose the innocence of the

convicted person or necessarily establish his innocence, in this

particular case the applicant's innocence appears from the express

wording of the order;

-  the applicant takes strong exception to the respondent Government's

reference to the weapon with which the crime was committed. The

applicant made repeated efforts to have the question of the alleged

weapon clarified but the Austrian courts and authorities refused to

make the necessary enquiries or to produce records relating to the

issue of the weapon, which was apparently of a type issued to certain

members of the civil services. They have similarly failed to produce

records relating to its alleged requisition by an occupying power and

subsequent disappearance.

3. Alleged violation of Article 5, paragraph (1) (c), and paragraph (3)

The applicant complains that his detention on remand pending the

retrial proceedings violated Article 5, paragraph (1) (c) and paragraph

(3).

The respondent Government submits:

-  as regards paragraph (1), of Article 5, the detention on remand does

not become unlawful merely because, owing to the difficulty of

obtaining evidence, the prosecution was discontinued. The suspicion

still resting on the applicant was sufficient to justify this

detention. This was the point of view of the court which had ordered

the retrial on procedural grounds. The prosecution was discontinued

solely on account of the difficulty of obtaining evidence and in

particular because the weapon with which the crime was committed was

no longer available.

-  as regards paragraph 3 of Article 5, that the length of the

detention on remand was not unreasonable in view of the complexity of

the case. The problems to be clarified made it necessary to obtain a

further medico-legal expert opinion. As an illustration of the

difficulties in the case it should be mentioned that in the course of

the original preliminary investigation the applicant had made repeated

confessions and demonstrated the commission of the crime of triple

murder.

The applicant submits in reply that:

-  his detention pending retrial was unlawful because the prosecution

knew from the beginning that it would be impossible to bring sufficient

new evidence to convict the applicant. For the same reason, the

detention was unreasonably long. As a result of the expert opinions

given in the proceedings on the application for retrial (which had

lasted five years) the facts of the case were already sufficiently

clear;

-  the further investigations pursued by the prosecution during the

period of detention pending retrial consisted of an examination of the

policemen present when the applicant made his confession and the

obtaining of a slightly extended medico-legal opinion from one of the

experts. In neither case could the results which might reasonably be

expected from these investigations have been of such a nature as to

establish the applicant's guilt. It was therefore not reasonable that

he should be kept in detention pending the conclusion of obviously

irrelevant investigations;

-  the applicant takes exception to the reference by the respondent

Government to his confession. As has been explained in the application

this confession was obtained under unusual circumstances and withdrawn

after a short time. It was not maintained at the trial and has never

been repeated. As to the demonstration of the crime by the applicant

it was shown by the expert opinions given during the retrial

proceedings that the crime cannot have been committed in the manner

demonstrated by the applicant.

4. Alleged violation of Article 5, paragraph (5)

The applicant complains that the respondent Government's refusal to

compensate him for his unjustified detention violates Article 5

paragraph (5).

The respondent Government submits that paragraph (5) of Article 5 gives

a right to compensation only where the detention was in contravention

of paragraphs (1) to (4). It is irrelevant that the accused person is

subsequently proved innocent if the detention was itself lawful (see

Application No. 2412/65, Collection of Decisions, Vol. 23,

Attention! Manuscript page 44 missing!!

the legislation provides no governing principles according to which

this discretion shall be exercised and the two criteria established by

this legislation namely "weakening of suspicion" and "probability of

innocence" are so framed as to leave too wide a discretion to the

courts;

-  alternatively if the respondent Government is correct in maintaining

that the applicant cannot rely on Article 5, paragraph (5), in spite

of the fact that his innocence has been established, he can

nevertheless rely on Article 13 of the Convention as he has no

effective rational remedy.

As to Article 6 of the Convention

1. Retrial proceedings

The applicant complains that Article 6 was violated in the proceedings

on his application for retrial.

The respondent Government submits that, according to the constant

jurisprudence of the Commission, Article 6 does not apply to

proceedings on an application for retrial. This jurisprudence is

correct. It is clear from paragraph (1) of Article 6 that this Article

applies only to proceedings which involve the determination of either

civil rights and obligations or of a criminal charge. Proceedings on

an application for retrial do not involve the determination of either

civil rights and obligations or of a criminal charge.

The applicant refers in reply to the Commission's decision in

Application No. 2136/64 (Yearbook, Vol. 7, pages 298-310) and, in

particular, to the following passage (loc. cit. pages 304, 306):

"Whereas the Commission has frequently stated that a person who has

been convicted by a Court decision amounting to res judicata is not a

person 'charged with a criminal offence' within the meaning of Article

6 and thus not entitled to the rights guaranteed therein;

Whereas it has further held that the provisions of Article 6 are not

applicable to a convicted person during subsequent revision proceedings

initiated by him before a domestic Court, unless that Court is seized

of any criminal charges against him, whether it be the initial charge

or that which a Public Prosecutor might have newly formulated or

repeated if the convicted person's application for revision had been

granted."

The applicant states that he does not maintain his original complaints

relating to the long duration of the proceedings on his application for

retrial and to the alleged violation of Rules of Procedure during these

proceedings. He considers, however, that, in the proceedings following

the Regional Court's decision ordering a retrial, the Court was seized

of a criminal charge against him with the consequence that Article 6

applied. He complains that Article 6, paragraphs (1) and (3), was

violated in these proceedings.

2. Proceedings concerning the applicant's claim for compensation

The applicant complains that Article 6, paragraphs (1), (2) and (3),

was violated in these proceedings.

The respondent Government submits that:

-  proceedings concerning compensation for detention do not amount to

a trial on a criminal charge. Paragraphs (2) and (3) of Article 6

cannot therefore apply to such proceedings since the rules they

enunciate relate exclusively to the rights of the accused in criminal

proceedings. Persons other than an accused cannot claim any rights

under paragraphs (2) and (3) of Article 6 (see Applications No. 808/60,

Yearbook, Vol. V, page 108; No. 858/60, Yearbook, Vol. IV, page 225).

In compensation proceedings the applicant is not an accused person but

a person making a claim in public law:  Article 6, paragraphs (2) and

(3), cannot therefore apply to such proceedings. An applicant cannot

claim the benefit of these provisions in any proceedings which follow

the delivery of judgment (Applications No. 3126/64, Yearbook, Vol. III,

page 298; No. 1135/61, Yearbook, Vol. VI, page 194; No. 1237/61,

Yearbook, Vol. V, page 96);

-  proceedings concerning compensation for detention do not involve the

determination of a "criminal charge" nor that of "civil rights and

obligations" in the sense of Article 6, paragraph (1). The right to

receive compensation depends on the person in question being able to

show that he is innocent and that socially and morally he deserves to

receive such compensation. The right to receive compensation does not

depend on the detention having been unlawful or caused by the fault of

the officials concerned. Indeed, in most cases where compensation is

awarded the detention was lawfully imposed. Thus the right to

compensation is not governed by the principles of the civil law.

Damages for detention are compensation for damage suffered as result

of the acts of a public authority. The right to such compensation is

not a civil law right but a right arising under public law.

The applicant submits in reply that:

-  the proceedings concerning compensation for detention relate to a

"criminal charge" in the sense of Article 6. A criminal charge does not

mean a formal charge but criminal proceedings concerning an act

punishable under the criminal law. Under the present Austrian

legislation on compensation for unjustified detention, the court which

acquits the person previously convicted or terminates the proceedings

against him shall decide immediately on the question of compensation

for detention. This decision is thus the final act of the criminal

proceedings";

-  in the proceedings concerning the claim for compensation, the law

requires the "weakening of the suspicion" to be proved by the

applicant. In the Court of Appeal proceedings of .. December, 1966, the

burden of proof was, in fact, placed upon him. The order for retrial

of May, 1966 had annulled the original judgment. The actual wording of

this decision established the applicant's innocence beyond all doubt.

But in the compensation proceedings it was suddenly stated that the

suspicion against him "has not been weakened". The applicant was thus

treated as being guilty although his guilt has not been proved

according to law. The effects of this are not merely financial:  the

applicant found himself once again treated as a murderer and this is

not consonant with Article 6, paragraph (2);

-  the applicant's claim for compensation must be classified as a civil

right within the meaning of Article 6, paragraph (1). The Commission

decided in the Isop case (Application No. 808/60, Yearbook, Vol. V,

page 108) that "the question whether a right or an obligation is of a

civil nature within (the meaning of) Article 6, paragraph (1), of the

Convention does not depend on the particular procedure prescribed by

domestic law for its determination but solely on an appreciation of the

claim itself and of the purpose of the complaint" (loc. cit. page 122).

Article 5, paragraph (5), of the Convention established an obligation

not pay compensation for unjustified detention. A claim for such

compensation must be recognised as a civil right within the meaning of

Article 6. In continental law this category extends to matters which

are classified as public obligations. However, the question whether a

claim for compensation is to be classed as a civil right under Article

6 does not depend on the fact that a private individual has suffered

damage. The Austrian Supreme Court recognised that an unlawful

detention arising out of the fault of an official organ gives rise to

an action for damages against the official concerned. The purpose of

the existence of civil rights is to protect the citizen against the

superior power of the State;

-  in the compensation proceedings before the Regional Court in

Korneuburg, the prosecution lodged voluminous written pleadings which

were not made known to the defence until after the decision rejecting

the applicant's claim had been taken on .. October, 1966. The

prosecution were present in court and argued the case against the

applicant. Neither the accused nor defence counsel were present at the

hearing. The law makes no provision for written pleadings to be lodged

by an applicant or his counsel. Defence counsel attempted in haste, and

without proper preparation, to draw up submissions but it was

impossible for him in doing so to take account of the prosecution

pleadings which he had not received. The result was that the same three

judges who in May had stated that the applicant was innocent now found

that the suspicion against him had not been weakened. From the point

of view of the merits this constitutes a reformatio in peius.

On appeal the prosecution again filed written pleadings and argued the

case in court in the absence of the applicant and defence counsel. The

prosecution counsel concerned in both instances had previously been

concerned in the case against the applicant and at no time during the

previous proceedings had they ever examined or mentioned a single point

telling in favour of the applicant although under an obligation to do

so under Article 3 of the Code of Criminal Procedure. In these

circumstances the principle of "equality of arms" was clearly violated

- see the cases of Ofner, Hopfinger, Pataki, Punshirn, Plischke and

Neumeister and Applications No. 1135/61 (Yearbook, Vol. VI, pages 194,

202) and No. 1793/62 (ibidem pages 458, 460).

THE LAW

Whereas the applicant complains that his detention as a convicted

person violated Article 5, paragraph (1) (a) (Art. 5-1-a), of the

Convention, in that it was not "lawful" within the meaning of this

provision, his conviction having been set aside in 1966; whereas

Article 5, paragraph (1) (Art. 5-1), guarantees to everyone the right

to liberty and security of person;

Whereas, however, under subparagraph (a) (Art. 5-1-a), a person may be

deprived of his liberty, in accordance with a procedure prescribed by

law, by "lawful detention ... after conviction by a competent court";

Whereas the Commission has examined the applicant's complaint with

regard to his detention between 3rd September, 1958, being the date of

the entry into force of the Convention with respect to Austria, and ..

July, 1966, being the date on which the Regional Court's order for

retrial acquired the force of res judicata; whereas the Commission

finds that this decision, which set aside the applicant's conviction

of 1950, did not retroactively affect the "lawfulness" of his detention

within the meaning of Article 5, paragraph (1) (a) (Art. 5-1-a);

Whereas it follows that the applicant's complaint under Article 5,

paragraph (1) (a) (Art. 5-1-a), is manifestly ill-founded within the

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

Whereas the applicant further complains that, during his detention as

a convicted person, he was required to perform forced or compulsory

labour, contrary to Article 4 (Art. 4) of the Convention; whereas he

considers in particular that the conditions of Article 4, paragraph (3)

(a) (Art. 4-3-a), were not fulfilled in his case, his conviction having

been set aside in 1966;

Whereas the Commission has again examined this complaint with regard

to the applicant's detention between 3rd September, 1958 and .. July,

1966; whereas it is true that Article 4, paragraph (2) (Art. 4-2), of

the Convention prohibits forced or compulsory labour; whereas, however,

it follows from paragraph (3) (a) (Art. 4-3-a), that, for the purpose

of this Article, the term "forced or compulsory labour" shall not

include "any work required to be done in the ordinary course of

detention imposed according to the provisions of Article 5 (Art. 5)";

and whereas the Commission has already found that the court decision

of 1966, which set aside the applicant's conviction of 1950, did not

retroactively affect the lawfulness of his detention within the meaning

of Article 5, paragraph (1) (a) (Art. 5-1-a);

Whereas it follows that the work performed by the applicant during his

above detention was covered by Article 4, paragraph (3) (a)

(Art. 4-3-a), read in conjunction with Article 5 (Art. 5);

Whereas, in this connection, the Commission refers to its decision on

the admissibility of Applications Nos. 3114/67, 3172/67 and 3188/67 to

3206/67 (Collection of Decisions, Vol. 27, pages 97, 110-111);

Whereas it follows that the applicant's complaint under Article 4

(Art. 4) is also manifestly ill-founded;

Whereas the applicant further complains that his detention on remand

pending the retrial proceedings violated Article 5, paragraph (1) (c)

and paragraph (3) (Art. 5-1-c, 5-3), of the Convention;

Whereas he maintains in particular that during the period concerned,

there existed no "reasonable suspicion" within the meaning of paragraph

(1) (c) (Art. 5-1-c), that he had committed an offense;

Whereas, under Article 5, paragraph (1) (c) (Art. 5-1-c), a person may

be deprived of his liberty, in accordance with a procedure prescribed

by law, by "lawful ... detention ... effected for the purpose of

bringing him before the competent legal authority on reasonable

suspicion of having committed an offence"; and whereas, according to

paragraph (3) of Article 5 (Art. 5-3), everyone detained under

applicant (1) (c) (Art. 5-1-c) shall be entitled "to trial within a

reasonable time or to release pending trial";

Whereas, in a previous case, the Commission has considered, but not

decided, the question whether the provisions of Article 5, paragraph

(3) (Art. 5-3), which concern detention pending trial, apply also to

detention pending retrial (see Application No. 1873/63, Collection of

Decisions, Vol. 22, pages 17, 21); whereas, assuming in the present

case that both paragraph (1) (c) and paragraph (3) of Article 5 (Art.

5-1-c, 5-3) may be invoked with respect to detention pending retrial,

the Commission does not find that these provisions were violated;

whereas, in this connection, it has had regard to the decisions of the

domestic courts, insofar as they have been submitted, and also noted

the uncontested statement by the respondent Government that, in the

view of the Regional Court which ordered the retrial, the suspicion

still resting on the applicant was sufficient to justify his continued

detention; whereas the Commission further observes, in respect of the

applicant's complaint under paragraph (3), of Article 5 (Art. 5-3),

that his detention pending retrial did not last longer than three

months and six days, namely, from .. July until .. October, 1966;

whereas, in the circumstances, this period cannot be regarded as

unreasonable; whereas it follows that the applicant's complaints under

Article 5, paragraph (1) (c) and paragraph (3) (Art. 5-1-c, 5-3), are

also manifestly ill-founded;

Whereas the applicant further complains that the respondent

Government's refusal to compensate him for his unjustified detention

violates Article 5, paragraph (5) (Art. 5-5), of the Convention;

Whereas, under this provision, the applicant would be entitled to

compensation if he had been the victim of arrest or detention in

contravention of paragraphs (1) to (4) of Article 5

(Art. 5-1, 5-2, 5-3, 5-4);

Whereas, however, the Commission has already found that his complaints

under paragraph (1), subparagraphs (a) and (c), and paragraph (3)

(Art. 5-1-a, 5-1-c, 5-3) do not disclose any appearance of a violation

of the Convention; whereas it follows that his complaint under

paragraph 5 (Art. 5-5) is also manifestly ill-founded;

Whereas the applicant further complains that Article 6 (Art. 6) of the

Convention was violated in the proceedings on his application for

retrial;

Whereas, however, in accordance with the Commission's constant

jurisprudence, proceedings concerning applications for retrial fall

outside the scope of Article 6 (Art. 6) of the Convention (see

Applications No. 864/60, Collection of Decisions, Vol. 9, pages 17,

20-22, and No. 1237/61, Yearbook of the European Convention on Human

Rights and Fundamental Freedoms, Vol. V, pages 100-102); whereas it

follows that this complaint is incompatible with the provisions of the

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

Whereas the applicant further complains that Article 6, paragraphs (2)

and (3) (Art. 6-2, 6-3), were violated in the proceedings concerning

his claim for compensation; whereas these provisions apply only to

persons "charged with a criminal offence"; and whereas the applicant's

claim for compensation was considered by the Austrian Courts after his

original conviction had been set aside and the subsequent investigation

against him had been terminated; whereas, at that state, he was not a

person charged with a criminal offence; whereas it follows that his

above complaint is also incompatible with the provisions of the

Convention;

Whereas, finally, the applicant complains that Article 6, paragraph (1)

(Art. 6-1) of the Convention was violated in the proceedings on his

application for compensation; whereas this provision governs the

determination of criminal charges and of civil rights and obligations;

Whereas the Commission has already found that, during the above

proceedings, the applicant was not under any criminal charge; whereas,

however, the question of a "civil right" within the meaning of Article

6, paragraph (1) (Art. 6-1); whereas the Commission finds that an

examination of the file in its present state does not give it the

information required for deciding this question; whereas, therefore,

it decides to invite the parties to appear before it, in accordance

with Rule 46 of the Rules of Procedure, in order to make oral

submissions on the admissibility of the applicant's above complaint;

whereas such submissions should, in particular, deal with the question

whether the proceedings concerned involved the determination of a

"civil right"; whereas, consequently, the Commission decides to adjourn

its examination of the remainder of the application;

Now therefore the Commission

1. Declares inadmissible:

- the applicant's complaints under Article 4 and 5 (Art. 4, 5) of the

Convention concerning his detention as a convicted person and pending

the retrial proceedings;

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

concerning the proceedings on his application for retrial;

- the applicant's complaints under Article 6, paragraphs (2) and (3)

(Art. 6-2, 6-3), of the Convention concerning the proceedings on his

application for compensation;

Adjourns its examination of the remainder of the application.