THE FACTS

Whereas the facts presented by the Parties may be summarised as

follows:

The Applicant is an Austrian citizen, born in 1929 and living at

Innsbruck. He complains of the duration of certain criminal proceedings

against him before the Austrian courts and of the length of his

detention pending trial. The details of these proceedings are as

follows:

I. In 1961 the Applicant was suspected of having instigated a certain

Dr. Y to organise with Italian nationals a course on explosives and of

having ordered dynamite for the purpose of committing acts of terrorism

abroad. A criminal investigation (Voruntersuchung) against him and

other persons was opened by the Regional Court (Landesgericht) of Graz

and, on .. August, 1961, the Applicant was arrested on suspicion of

having committed crimes under Articles 5 and 6 of the Explosives Act

(Sprengstoffgesetz) and Article 5 of the Criminal Code (Strafgesetz).

The warrant for his arrest was based on Article 175, paragraph (1),

Nos. 2, 3 and 4, and Article 180 of the Code of Criminal Procedure

(Strafprozessordnung). Article 175, paragraph (1) states as follows:

"(1) The investigating judge may, even without previous summons, order

a person suspected of a crime (Verbrechen) or misdemeanour (Vergehen)

to be brought before him and to be taken into temporary custody where:

1. ...

2. the suspected person has made preparations to abscond or where, by

reasons of the severity of his respective sentence, his itinerant way

of life or because he is unknown in the neighbourhood, homeless or

without papers, or for any other good reason, it appears likely that

he will abscond;

3. the suspected person has attempted to influence witnesses, experts

or other accused in a manner likely to prevent the ascertainment of the

facts or otherwise to hinder the investigation by destroying traces of

the crime or misdemeanour, or where there are good grounds to fear that

this might occur;

4. particular circumstances justify the fear that the accused will

repeat a completed action or carry out an attempted or threatened

action."

On .. October, 1961, the Applicant filed a petition for release from

detention on a solemn undertaking pursuant to Article 191 of the Code

of Criminal Procedure. This petition was refused by the investigating

judge (Untersuchungsrichter) on .. October and, on appeal (Beschwerde),

by the Judges' Chamber (Ratskammer) of the Regional Court on ..

November, 1961. The Chamber noted that, on .. October, the

investigation had been extended to further offenses under the

Explosives Act and held that, especially in view of this extension of

the investigation, the risks of the Applicant's absconding and

committing further similar offenses continued to obtain as legal

reasons for his detention. The Applicant's further appeal from this

decision was dismissed by the Court of Appeal (Oberlandesgericht) of

Graz on .. December, 1961.

Following a second petition for release by the Applicant, the Judges'

Chamber found, on .. December, 1961, that there was no further danger

of his committing further offenses of the same nature and, on the same

day, the Applicant was released on parole and bail of 10,000 Austrian

Schillings under Articles 191 and 192 of the Code of Criminal

Procedure.

Before that date, and also subsequently, the volume of the proceedings

grew considerably as a result of the inclusion of several criminal

proceedings pending before other courts against the Applicant and a

great number of other persons for suspected planning and execution

abroad of plots involving explosives.

II. The Applicant was not brought to trial in 1962 and, in February,

1963, he absconded to Germany in order to escape his arrest in another

criminal case which was then pending before the Regional Court of

Innsbruck. In that case, he was suspected of having given refuge to

persons who moved explosives from Innsbruck to foreign countries as

well as of having himself stored explosives in his home. The Applicant

states that the criminal proceedings relating to these alleged offenses

were later discontinued.

III. On .. March, 1963, the Judges' Chamber of the Regional Court of

Graz declared forfeited the Applicant's bail in the proceedings

mentioned under I above on the ground that he had left his domicile in

Austria and remained abroad without the Court's permission. For the

same reason, the investigating judge of the Court, on .. March, 1963,

issued a new warrant of arrest and, on .. June, 1964, the Applicant was

re-arrested at Klagenfurt. His appeal against detention was dismissed

by the Judges' Chamber on .. July, 1964. The Chamber stated that, after

his return to Austria, the Applicant had lived there under a false name

and it confirmed the finding of the investigating judge that there was

a danger that the Applicant might, if released, again flee the country.

The investigation against the Applicant was extended to further

criminal offenses under the Explosives Act and the Arms Act

(Waffengesetz) and later on also to an offence of incitement to

disaffection (Aufwiegelung) under Article 300 of the Criminal Code. On

.. February, 1965, the Applicant was informed of the indictment

(Anklageschrift) lodged by the Public Prosecutor's Office

(Staatsanwaltschaft) of Graz in which he and another 21 persons were

charged with offenses under the Explosives Act. His objection

(Einspruch) to the indictment was overruled by the Court of Appeal on

.. April, 1965.

A petition for release filed by the Applicant was refused by the

investigating judge and, on appeal and further appeal, by the Judges'

Chamber on .. March and by the Court of Appeal on .. April, 1965.

IV. On .. May, 1965, the Applicant's trial (Hauptverhandlung) opened

before the Schöffengericht (a chamber composed of two judges and two

jurymen) of the Regional Court of Graz. Counsel for the defence moved

that the Schöffengericht should immediately declare itself incompetent

pursuant to Article 261 of the Code of Criminal Procedure on the ground

that the defendants were suspect of having joined in a conspiracy

within the meaning of Article 7 of the National Security Act

(Staatsschutzgesetz) and that consequently the case fell within the

competence of the Court of Assizes (Geschworenengericht). The

Schöffengericht dismissed this motion, holding that only after having

heard the evidence could it determine whether the acts imputed to the

defendants were of a political nature. At the same time the Court

refused a new petition for release filed by the Applicant.

After having heard all defendants and examined the evidence, the

Schöffengericht, by its judgment of .. May, 1965, declared itself

incompetent. The Court stated that it had come to the conclusion that

the defendants had joined in a conspiracy which served the purpose not

only of undertaking plots involving explosives but also of procuring,

in a clandestine and unlawful manner, ammunition and other material for

fighting and of keeping and distributing such material to the members

of their group acting as armed bands abroad. Therefore, the defendants

were under strong suspicion that, in addition to the crimes punishable

under the Explosives Act which formed the subject of the indictment,

they had committed an offence punishable under Article 10 of the

National Security Act, which, however, established the Court of Assizes

to be competent in accordance with Article 14 a of the Code of Criminal

Procedure.

The Schöffengericht deemed itself no longer competent to decide on a

petition for release submitted by the Applicant after the above

judgment had been pronounced.

V. On .. and .. June, 1965, further petitions for release were filed

by the Applicant and the Regional Court of Graz decided on .. June,

1965, that he should be released on parole and on furnishing bail of

200,000 Austrian Schillings. He was accordingly released on .. June,

1965.VI. The Applicant's trial before the Court of Assizes of Graz opened

on .. September and lasted until .. October, 1965. The jurors

unanimously answered all of the main questions and secondary questions

(8) in the negative. On the basis of this verdict the Applicant was

acquitted of certain counts of the charge on .. October, 1965, in

accordance with Article 259, No. 3 of the Code of Criminal Procedure;

this judgment became final. Regarding the other charges the verdict was

suspended by a unanimous decision of the Schwurgerichtshof (the

professional judges of the Court of Assizes) under Article 334,

paragraph (1) of the Code of Criminal Procedure. According to this

rule, the Schwurgerichtshof may, where it holds unanimously that the

jurors passed an erroneous verdict on the main issue, suspend the

verdict and submit the case to the Supreme Court (Oberster Gerichtshof)

for reference to another Court of Assizes.

In respect of the counts on which the verdict was suspended, the

Supreme Court, on .. March, 1966, referred the case to the Court of

Assizes of Linz for a new trial pursuant to Article 334, paragraph (2),

of the Code of Criminal Procedure.

With regard to the duration of the above criminal proceedings against

him before the Austrian Courts and the length of his detention pending

trial, the Applicant now alleges violations of Article 5, paragraph (3)

and Article 6, paragraph (1) of the Convention. He submits that a

substantial delay in the proceedings was caused by the Office of the

Public Prosecutor which brought his case before the Schöffengericht

although that Court had no jurisdiction in the matter.

Proceedings before the Commission

I. On 14th December, 1966, the Commission decided to give notice, in

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

of the Application to the Respondent Government and to invite it to

submit its observations in writing on the admissibility of the

Application.

II. In its observations of 17th March, 1967, the Austrian Government

submitted that the Applicant's complaints under Articles 5 and 6 of the

Convention were inadmissible, in part, under Articles 26 and 27,

paragraph (3) for non-exhaustion of domestic remedies and, in any case,

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

paragraph (2).

1. As to the alleged violation of Article 5, paragraph (3), the

Government pointed out that, during his first detention from .. August

until .. December, 1961, the Applicant did not lodge an appeal against

detention until .. October. During his second detention from .. June,

1964, until .. June, 1965, he failed to introduce a further appeal

against the decision given by the Judges' Chamber on .. July, 1964,

although such a remedy lay under Article 114, paragraph (1) of the Code

of Criminal Procedure.

2. With respect to the complaint under Article 5, paragraph (3), the

Government further submitted that the Applicant's case was very

voluminous and complicated. The great number of accused and of criminal

acts made the investigation very difficult. The case-file comprised ten

volumes containing altogether 5478 pages. In the Government's opinion,

further reasons for the length of the Applicant's detention were his

fleeing to another country, the host of his appeals against detention

and other petitions, and the fact that, after his first release, he

continued to commit criminal acts. In these circumstances, the

Applicant had been brought to trial "within a reasonable time" in

accordance with Article 5, paragraph (3), and it followed that this

part of the Application was manifestly ill-founded within the meaning

of Article 27, paragraph (2) of the Convention.

3. In respect of the alleged violation of Article 6, paragraph (1) of

the Convention, the Government submitted that a person could not be

regarded as being under a "criminal charge" ("accusation" in the French

text, "Anklage" in the German translation) within the meaning of that

provision until he had been formally arraigned. Reference was made in

this connection to the Commission's decisions on the admissibility of

Application No. 1216/61 (Collection of Decisions, Volume 11, pages 1

[5 - 6]) and Application No. 1545/62 (Yearbook of the European

Convention on Human Rights, Volume 5, pages 270 [276]) and to the usage

in English, French and Austrian criminal procedure.

In the opinion of the Government, it was therefore only when a formal

indictment (Anklage) within the meaning of Chapter XVI of the Austrian

Code of Criminal Procedure had been brought against him and become

legally valid (rechtskräftig), that a person in Austria had the right

to a judicial decision within a reasonable time under Article 6,

paragraph (1) of the Convention. It followed that, in the present case,

the starting point to be taken into consideration was .. April, 1965,

when the Applicant's objection lodged against his indictment was

overruled by the Court of Appeal of Graz. In the meanwhile, the charge

against him had twice been tried in judicial proceedings and decided

upon by a judgment. His third trial was expected to take place before

the Court of Assizes of Linz in May 1967.

With regard to the Applicant's complaint that a considerable delay in

the criminal proceedings against him was caused by the Public

Prosecutor's Office in that it brought his case before the

Schöffengericht although such court was not competent for the subject

matter, the Government made the following observations:

The Explosives Act had originally been deemed a purely political Act

and Article 13 of the Act established in principle the competence of

the Court of Assizes in regard to offenses punishable under Articles

4, 5, 6 and 8. However, this rule, which had already been invalidated

by the Code of Criminal Procedure Amendment Act of 1920, was finally

repealed by the Criminal Code Amendment Act of 1934. Thereafter, only

the acts enumerated in Article VI, No. 1 of the Introductory Act to the

Code of Criminal Procedure, later incorporated in Article 14 (a)

paragraph (1) of this Code, constituted clearly political offenses

coming within the exclusive competence of courts of assizes according

to Article 91, paragraph (2) of the Federal Constitution

(Bundes-Verfassungsgesetz). Criminal acts punishable under the

Explosives Act were not mentioned in this list. It followed that they

were not in themselves political offenses although, in the light of the

underlying motive or purpose, they might constitute such offenses. In

a decision of 1963, the Supreme Court accordingly ruled that in the

present legal situation the Schöffengerichte were competent to judge

alleged violations of the Explosives Act. In the Government's opinion,

the Applicant had not committed a clearly political offense. There were

no concrete clues pointing to a violation of Article 10 of the National

Security Act and this offence was therefore not included in the

indictment. When the Schöffengericht of Graz, by its decision of ..

May, 1965 dismissed the motion of counsel for the defence that it

should at once declare itself not competent, the Court subscribed to

the legal view set out above. The decision of non-competence which it

gave on .. May, 1965, left the general legal situation unchanged.

The Government concluded that, in the above circumstances, a

"reasonable time" within the meaning of Article 6, paragraph (1) of the

Convention had not been exceeded in the Applicant's case. It followed

that the remainder of the Application was also manifestly ill-founded.

III. In his reply of .. April, 1967, the Applicant maintained his

complaints under Articles 5 and 6 of the Convention.

1. He objected to the Government's observation that, in respect of the

alleged violation of Article 5, paragraph (3), he had failed to exhaust

the remedies available to him under Austrian law. He stated that an

appeal against detention lodged immediately after his first or second

arrest would have been unsuccessful as even his petitions for release

introduced at later stages of his first and his second detention were

rejected by the competent courts. The Applicant also submitted that he

failed to lodge premature appeals because he did not want to protract

the investigation unnecessarily. He considered that the Respondent

Government could not, on the one hand, reproach him for not having

taken his complaint concerning detention before every instance when it

alleged, on the other hand, that the length of this detention was due

to the large number of appeals filed by him.

2. In the Applicant's opinion, neither his complaint under Article 5,

paragraph (3), nor that under Article 6, paragraph (1), was manifestly

ill-founded as suggested by the Government. In this respect, he stated

that, after his second arrest on .. June, 1964, he was informed by the

investigating judge that the investigation was closed and that the file

had been finally sent to the Public Prosecutor's Office. It was clear

from Article 112 of the Austrian Code of Criminal Procedure that either

the Applicant should have been served with the indictment within 14

days or, in the absence of any grounds for further proceedings, the

case should have been closed. In fact, he did not receive the

indictment until .. February, 1965, that is to say three months after

the time-limit provided for by law, and then only after he had started

a total hunger strike which aroused considerable public interest.

Furthermore, he was indicted before the wrong court and this protracted

the whole case further. All the circumstances described by the

Schöffengericht in its ruling of lack ofjurisdiction were known to the

Public Prosecutor's Office from the beginning but were deliberately

ignored. Since the verdict of the Court of Assizes was set aside in

October 1965 a further 18 months had elapsed, so that even in this last

stage there had been unnecessary delay. The new trial was now to be

held between .. and .. May, 1967, before the Court of Assizes at Linz.

With regard to the period to be taken into consideration under Article

6, paragraph (1) of the Convention, the Applicant pointed out that

proceedings against him began with his arrest on .. August, 1961. Thus

they had already run for nearly six years, during which time, in

addition to his periodical detention pending trial, he had been

subjected to all kinds of other restrictions with regard both to the

exercise of his profession and to his freedom. Any attempt to deduce

from the wording of Article 6, paragraph (1) that, in criminal

proceedings, it applied only to persons who were already in possession

of the indictment was either to misunderstand the meaning of the

Convention or to twist its meaning to the exact opposite. For such a

limitation of this provision of "accused persons" would make it

possible for any State to subject a citizen to criminal investigation,

with all its disabilities, for an unlimited period; it would simply be

necessary for the Public Prosecutor's Office to delay delivery of the

indictment for as long as it chose as had happened in the present case.

In this connection the Applicant pointed out that throughout 1962, to

take one example, there was no significant action by either the

investigating judge or the Public Prosecutor's Office and, although the

investigation was for all practical purposes complete at the beginning

of that year, no indictment was preferred. This entailed the greatest

inconveniences for all the defendants concerned and it could not be the

intention of the Convention not to offer any protection against such

conduct. The Applicant concluded that the length of his detention and

of the proceedings against him originated not in any complexity of the

facts but in the political intentions of the prosecution which thought

to serve the higher interests of the State.

THE LAW

Whereas, with regard to the Applicant's complaint concerning the length

of his detention pending trial, Article 5, paragraph (3) (Art. 5-3) of

the Convention states that anyone arrested or detained in accordance

with paragraph (1) (c) of that Article (Art. 5-1-c) "shall be entitled

to trial within a reasonable time or to release pending trial from ..

August until .. December, 1961, and again from .. June, 1964 until ..

June, 1965;

Whereas the Commission has considered the question whether, for the

purpose of Article 5, paragraph (3) (Art. 5-3), the above two periods

of four months and one year respectively should be judged separately

or as a whole;

Whereas, further, with regard to the second period of detention, the

Commission has noted that it continued during the Applicant's trial

before the Schöffengericht of Graz and subsequently for one month

pending his trial before the Court of Assizes of Graz; whereas, in this

connection, the further question arises whether the period to be

considered under Article 5, paragraph (3) (Art. 5-3), of the Convention

ends at the date when the trial opens or continues until judgment is

passed by a court of first instance, or extends beyond that date until

the day of a final decision on appeal;

Whereas, however, the Commission does not feel called upon to decide

these questions in the present case as it finds that, even if the two

periods of the Applicant's detention, including the time between the

date of the opening of his trial before the Schöffengericht and the

date of his final release, were considered as a whole, there is in the

particular circumstances of the case no appearance of a violation of

Article 5, paragraph (3) (Art. 5-3) of the Convention;

Whereas, in this respect, the Commission recalls that, according to its

constant jurisprudence, the question whether a period of detention

pending trial is "reasonable" or not cannot be decided in abstracto but

must be determined in the light of the particular circumstances of each

case (see Application No. 2077/63, Yearbook of the European Convention

on Human Rights, Volume 7, pages 268 [276, 278], and Application No.

2516/65, Collection of Decisions of the Commission, Volume 20, pages

28 [35]);

Whereas, in the present case, the Commission has taken into account the

facts that the investigation was complicated because of the great

number of persons accused and of alleged offenses; that, after his

first release in 1961 on parole and bail, the Applicant fled the

country and, after later returning to Austria, lived there under a

false name; and that it does not appear that during his detention the

criminal proceedings against him were substantially prolonged through

the fault of the competent authorities;

Whereas, in view of all these circumstances, an examination of the case

does not disclose any appearance of a violation of Article 5, paragraph

(3) (Art. 5-3) of the Convention; 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, with regard to the Applicant's complaint concerning the

duration of the criminal proceedings against him, Article 6, paragraph

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

any criminal charge against him, everyone is entitled to a "hearing

within a reasonable time";

Whereas, in the opinion of the Respondent Government, the period of

"reasonable time" referred to in this provision does not begin until

the person concerned has been formally charged; and whereas, in support

of this view, the Government refers to the Commission's decisions on

the admissibility of Applications Nos. 1216/61 and 1545/62;

Whereas the Applicant objects to this interpretation of Article 6,

paragraph (1) (Art. 6-1) of the Convention; whereas he considers that

such a limitation of the scope of this provision would make it possible

for a Contracting State to subject a citizen to criminal investigation,

with all its disabilities, for an unlimited period, as it would simply

be necessary for the Public Prosecutor to delay delivery of the

indictment as long as he chose;

Whereas it is true that, in its decision on the admissibility of

Application No. 1216/61 (loc. cit. page 6), the Commission held that

a person against whom a criminal charge (öffentliche Klage) within the

meaning of the German Code of Criminal Procedure (Strafprozessordnung)

has not yet been brought is not a person "charged with a criminal

offense" within the meaning of Article 6, paragraph (3) (Art. 6-3) of

the Convention; and whereas, in its decision on the admissibility of

Application No. 1545/62 (loc. cit. page 276), the Commission stated

generally that the words "within a reasonable time" in Article 6,

paragraph (1) (Art. 6-1) "refer to the period that elapses between the

charge and sentence";

Whereas, however, in the case of Neumeister against Austria

(Application No. 1936/63) which is now pending before the European

Court of Human Rights, the Commission has again considered the question

at what stage the period of "reasonable time" referred to in Article

6, paragraph (1) (Art. 6-1) begins; whereas, in that case, it has

arrived at the general conclusion that the relevant stage is that "at

which the situation of the person concerned has been substantially

affected as a result of a suspicion against him"; and whereas, pending

a decision of the Court on this question, the Commission maintains the

opinion which it adopted in the Neumeister case;

Whereas it follows that, in the present case, the starting point taken

into account by the Commission for the purpose of deciding whether a

"reasonable time" within the meaning of Article 6, paragraph (1)

(Art. 6-1) has been exceeded is the date of the Applicant's first

arrest in the criminal proceedings against him, namely .. August, 1961;

Whereas the Commission has also considered the question whether the

requirement under Article 6, paragraph (1) (Art. 6-1) as to "reasonable

time" is satisfied where a trial is opened and the accused is heard by

a court of first instance within a reasonable time; alternatively,

whether it is necessary that during this time a judgment is given by

the court; or whether the period referred to in Article 6, paragraph

(1) (Art. 6-1) also includes any proceedings on appeal; whereas the

Commission does not feel called upon to decide this question in the

present case;

Whereas it finds that, even if the period of nearly six years which

elapsed between the Applicant's first arrest on .. August, 1961, and

the date of the Commission's present decision (30th May, 1967) were

fully taken into account, there is, in the particular circumstances of

the case, no appearance of a violation of Article 6, paragraph (1)

(Art. 6-1) of the Convention;

Whereas, in this respect, the Commission refers to the grounds set out

above in its finding regarding Article 5, paragraph (3) (Art. 5-3);

Whereas, in particular, the criminal proceedings against the Applicant

were substantially delayed by the fact that, in February 1963, he

absconded to Germany and that, after his return to Austria, he lived

there under a false name until he was re-arrested on .. June, 1964;

whereas, in the meanwhile, the charges against him have been tried in

judicial proceedings and decided upon by a judgment; and whereas he has

been finally acquitted of some of the charges;

Whereas it follows that the remainder of the Application is also

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

(Art. 27-2) of the Convention.

Now therefore the Commission declares this Application inadmissible.