THE FACTS

Whereas the facts of the case as submitted by the Parties may be

summarised as follows:

1. The Applicant is an Austrian citizen, born in 1934, and at present

living in Vienna.

In 1955 the Applicant was employed as an inspector with the "Heimat"

Insurance Company in Vienna. While thus engaged, it appears that he

began both on his own account and for the Company to negotiate loans

to the company's clients and finally became a full-time and independent

financial agent.

On 10th January 1958 he founded the partnership business of Stögmüller

& Co. Ltd. in association with two other persons. The company, whose

registered office was in Linz, had an initial capital of 100,000,-

schillings. Its activities consisted of transactions relating to

property, including negotiating and advancing loans secured by landed

property or otherwise, the administration of property against

remuneration, the negotiation of settlements in and out of court, as

well as a house agency and commission business. The Company also

carried on the business of wholesale and retail trading in goods of all

kinds, including in particular, importing and exporting. All three

partners were registered as directors, the company's business being

able to be transacted by any two of them. In practice, Ernst

Stögmüller, who owned 80 % of the capital stock, managed the business

alone and, in August 1959, the Applicant became sole director and

transferred the registered office from Linz to Vienna. On 14th August

1961, the Applicant sold this company and since that date has not taken

part in any commercial activity.

2. As early as 1954 information against the Applicant was repeatedly

laid before the Public Prosecutor's Office in Vienna and elsewhere by

persons who claimed they had been the victims of fraudulent, and later

usurious, business methods practised by Stögmüller as an insurance

agent, a second-hand car dealer and financial agent. The criminal

proceedings instituted following these accusations were later suspended

in all but four cases or were concluded with the acquittal of the

Applicant.

In connection with a particular civil action brought by the "Heimat"

Insurance Company before the District Court of Ferlach, the Judge felt

obliged, in view of the disclosure of certain business practices of the

Applicant, to communicate the facts of the case to the Public

Prosecutor's Office. The consequent investigations resulted in the

Public Prosecutor's Office at Klagenfurt charging the Applicant with

fraud on five counts under Sections 197, 200, 201 (d), 203 and 199 of

the Penal Code.

On 9th July 1959, the proceedings relating to these charges were

transferred at Stögmüller's request to the Regional Court of Vienna

which acquitted him on 15th June 1960. A plea of nullity lodged by the

Public Prosecutor's Office was then examined by the Supreme Court

which, by a decision of 31st January 1961, upheld the Regional Court's

judgment on three of the counts and referred the case back to the Court

for review of two charges. On 28th May 1963, the latter convicted the

Applicant under Sections 197 and 199 (a) of the Penal Code before the

District Court of Vienna in respect of a charge of perjury committed

on 12th December 1957. He was sentenced to five months imprisonment but

was acquitted on the other charges. He then entered a plea of nullity

against his conviction, and this plea is still pending before the

Supreme Court.

3. On 5th December 1957, following the filing of numerous depositions,

the District Court of Wels opened preliminary enquiries concerning

further alleged offenses of fraud under Sections 197 and 200 of the

Penal Code and later of usury under Section 2 (4) of the Usury Act

(Wuchergesetz) and on 3rd March 1958 the Court remanded the Applicant

in custody under Section 175 (3) and 180 (1) of the Code of Criminal

Procedure. Following a request by Stögmüller on 15th March 1958, the

case was transferred to the Regional Court of Linz and, on 21st April

1958, the Applicant was released on conditions.

4. In June 1958, supplementary information, covering more than 2,000

pages, was filed with the Public Prosecutor's Office in Linz alleging

fraud, misappropriation of funds and profiteering by the Applicant and

also by a Dr. Ernst Standhartinger, a barrister. Stögmüller was

accused, in particular, of having from 1957 onwards made a practice of

demanding exorbitant security for loans from a large number of persons

who were apparently in difficult financial circumstances and further,

of having, alone or together with other persons, obtained money from

numerous other persons by fraudulent practices and of having

misappropriated capital entrusted to him.

The investigating magistrate at the Regional Court of Linz had just

begun extensive enquiries when the Applicant submitted a request on rh

October 1958 for the case to be transferred to the Regional Court of

Vienna. Since the persons accused with him had agreed to this, the case

was duly transferred.

After a study of the voluminous files, the examining magistrate in

Vienna decided to continue preliminary investigations into 31 charges

of misappropriation of funds, 21 charges of fraud and a further 21

charges under Sections 2 and 3 (4) of the Usury Act. Enquiries were

subsequently extended to 12 other accusations and suspended on 8 more.

On 10th February 1961, the Applicant, then at liberty, was informed on

these individual accusations.

5. When the Applicant failed to appear at the hearing fixed for  August

1961, police enquiries established that he had flown to Greece in an

aeroplane said to belong to his father. On his return, he was

re-arrested on thy August 1961 by a court order which had been made in

view particularly of strong suspicions that he had committed fresh

offenses after his release (Section 175, paragraph 1 (2) and (4) of the

Code of Criminal Procedure).

On thy October 1961, the Regional Court of Vienna, rejecting an appeal

lodged by the Applicant against his re-arrest, stated that official

enquiries had revealed that he had made several unauthorised journeys

within Austria and abroad and that, in accordance with Section 191 of

the Code of Criminal Procedure, his re-arrest had followed as the

natural consequence of his breach of the conditions upon which he had

been released. The Court further pointed out that, since Stögmüller had

in the meanwhile qualified as a pilot and had made frequent flights

abroad in an aeroplane belonging to his family, there was an obvious

danger that he might attempt to escape, particularly as the offenses

imputed to him were punishable by a prison sentence of five to ten

years.

As a further ground for rejecting the Applicant's appeal, the Court

referred to the danger of recidivism as the Applicant had, since his

release in 1958, allegedly committed more offenses of the character

referred to in Section 183, 197, et sen. and 205 (c) of the Penal Code.

By a decision of 10th November 1961, the Court of Appeal of Vienna

dismissed Stögmüller's appeal against the decision of the Regional

Court, having expressly taken into consideration the danger of his

committing further offenses. The Court did not, however, support the

finding of the lower court that the Applicant might attempt to escape

from Austria.

A further request by the Applicant for his release was rejected by

decision of the investigating magistrate on 3rd January 1962 on the

same ground, and the subsequent appeal lodged by Dr. Ada Tammy, the

Applicant's counsel, was dismissed by the Regional Court of Vienna on

thy January 1962. The Court of Appeal of Vienna upheld this decision

on 14th March 1962.

6. Since the Applicant's attempts to secure his release were

unsuccessful, he then filed several applications and complaints. In an

application of 31st October 1962, addressed to the President of the

Regional Criminal Court of Vienna, he complained inter alia, that the

examining magistrate was deliberately protracting the proceedings,

which had already been pending for five years, and that during his 14

months' detention he had been heard on only three occasions. This

application was dismissed. The Applicant then lodged a disciplinary

complaint (Aufsichtsbeschwerde) which was also dismissed by the Court

of Appeal of Vienna in a decision of 23rd January 1963.

In a further application of 7th November 1962, the Applicant challenged

the Court of Appeal of Vienna, and the courts of first instance within

its jurisdiction on grounds of partiality, alleging that one of the

judges in Vienna was also involved in the case and that Dr. Ernst

Standhartinger, who was accused with him, was a close relative of a

Viennese judge. At the same time, he requested the transfer of his case

to the Regional Court of Salzburg.

The Supreme Court, which was required to pronounce only on the issue

of the alleged lack of impartiality of the Court of Appeal of Vienna,

dismissed the Applicant's motion on 6th February 1963, having found

that there were no grounds for fearing that the Court would allow

itself to be influenced by other than purely objective considerations.

On 27th February 1963, the Court of Appeal of Vienna rejected the

Applicant's motion in respect of the courts of first instance on the

grounds that the judges named by the Applicant had nothing to do with

the Applicant's case and were in no way associated with the judges

conducting it and that, moreover, Dr. Ernst Standhartinger was not a

close relative of the Viennese judge of the same name. The Applicant's

request for the transfer of his case was also rejected.

An application by the Applicant to the Constitutional Court submitting

that the proceedings against him had already continued for five years

and that, although he had been in custody for 18 months, there were

several matters on which he had not yet been heard, was dismissed by

a decision of the Constitutional Court on 27th March 1963 on the ground

that it was not competent to examine appeals against court judgments

or decisions or against the behaviour of judicial organs with regard

to jurisdiction.

7. On 26th August 1963 the Applicant was released on bail of 200,000

Schillings. The investigation against him is still being continued and

he has not yet been formally charged.

The submissions of the Parties

Whereas in his Application form, in his reply of 14th September 1963

and at the oral hearing on 1st October 1964, the Applicant alleges

violations of:

- Article 5, paragraph (1) (c) in that he was arrested and detained

without reasonable suspicion;

- Article 5, paragraph (3) in that the investigation against him did

not necessitate his detention for periods totalling 2 years and 7

weeks;

- Article 6, paragraph (1) in that he has not been brought to trial

within a reasonable time;

- Article 6, paragraph (1) in that the examining magistrate does not

carry out the investigation against him in an impartial manner;  -

Article 6, paragraph (3) in that the investigating judge has refused

to hear certain witnesses for the defence;

Whereas the Respondent Government has replied to these allegations in

its written observations of 28th August and 9th December 1963 and at

the oral hearing on 1st October 1964;

Whereas the submissions of the Parties on these various issues may be

summarised as follows:

In respect of the alleged violation of Article 5, paragraph (1) (c) of

the Convention

The Respondent Government submitted that the number of offenses imputed

to the Applicant and investigated by the examining magistrate, Dr.

Leonhard, gave rise to a strong suspicion that the Applicant was guilty

of offenses punishable by a prison sentence of five to ten years. His

arrest and detention were therefore justified in the interests of

justice. Furthermore, it could not be excluded that the Applicant

would, if remaining in liberty, have committed further offenses.

The Government also gave details as to the accusations which in 1961

and 1962 had warranted the rejection of the Applicant's two requests

for release. It further contested the Applicant's statement that he had

received permission to leave Austria and submitted that his failure to

appear at a hearing on 18th August 1961 constituted a breach of the

conditions upon which he was released in 1958. In conclusion, it

submitted that this allegation was manifestly ill-founded.

The Applicant submitted that his arrest and detention were not

justified under the Convention. A denunciation, which has been neither

proved nor even investigated, cannot be a basis of "a reasonable

suspicion" within the meaning of Article 5, paragraph (1) (c). He added

that he had been able to refute each accusation when called upon to

make a statement before the examining magistrate. The Austrian Courts

had attempted to justify his arrest and detention on the ground that

he might commit further offenses, but they had failed to take into

account that, prior to his second arrest on 25th August 1961, he had

sold his company and finally withdrawn from all commercial activities.

As to his failure to attend the hearing on 18th August 1961, he

submitted that, on receiving the summons, he asked his lawyer to

request an adjournment of the hearing to which the examining

magistrate, Dr. Leonhard, agreed. He returned from his journey to

Greece on 19th August 1961 and immediately reported his return to his

lawyer and to Dr. Leonhard. Nevertheless, the latter issued less than

a week later a warrant for the Applicant's arrest.

He further submitted that he had a standing permission to travel

abroad, the only restriction being that he left his address with his

lawyer.

In respect of the alleged violation of Article 5, paragraph (3) of the

Convention

The Respondent Government submitted that a danger existed in 1961 that

the Applicant might commit further offenses and that his detention was

then necessary. In 1963, that is two years after he had wound up his

affairs, no such danger existed and the Applicant could be released on

bail.

It further submitted that, according to the above provision of the

Convention, an arrested person shall be entitled to trial within a

reasonable time or to release pending trial. As the Applicant was

released on 26th August 1963, it concluded that the alternative

provision did not come into consideration and paragraph (3) had been

duly respected, and the Commission was barred from examining the length

of the period during which the Applicant had been detained.

In any event, the term "within a reasonable time" should be given a

flexible interpretation in the light of the particular circumstances

of each case. A detention of the Applicant for a prolonged period was

necessary in view of the extremely complex nature of the accusations

laid against him.

The Applicant submitted that the above provision had been violated in

that he had not been brought to trial within a reasonable delay or

released pending trial. The fact that he was released prior to trial,

namely on 26th August 1963, did not bar the Commission from examining

whether or not a period of detention totalling 2 years and 7 weeks was

excessive. He pointed that the reasons which finally led to his release

in 1963 already existed and ought to have been accepted in 1961;

indeed, prior to his arrest, he had on 14th August 1961 sold his

company and voluntarily detached himself from any commercial activity

which, in the eyes of the Prosecution, might have tempted him to commit

further offenses. In fact, the grounds on which his release was ordered

corresponded closely to those contained in his own requests for release

two years earlier.

During the two years which he had spent in prison pending trial, he had

been heard by the examining magistrate on 13 occasions only, namely,

on 26th August and 28th December 1961, 11th, 13th, 16th, 17th, 18th and

23rd July 1962, 29th May, 18th June, 5th, 7th and 9th July 1963. These

hearings related to only five accusations out of about 80 under

investigation.

During the year which has elapsed since his release he has been heard

on 15 accusations. This tends to show that his detention was entirely

superfluous and purposeless.

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

Convention in that the Applicant was not brought to trial within a

reasonable time.

The Respondent Government submitted that the accusations against the

Applicant were extraordinarily complex and difficult to investigate.

It was not contested that the preliminary examination had begun in 1957

and that it was difficult now, after almost seven years, to give any

precise information as to when this investigation could be completed.

It was, however, submitted that the term "reasonable time" should be

interpreted in relation to the special circumstance of each case. The

present case was extraordinary in that more than 80 different

transactions had to be carefully examined and these transactions were

of a particularly complicated factual and legal character and in that

the intransigent behaviour of the Applicant did not facilitate their

examination.

Within the space of 5 months in 1962 and 1963, the Applicant filed no

fewer than 28 applications and complaints calling for an answer or a

decision by the examining magistrate. As was clear from a letter

addressed by the Applicant to his legal adviser, Dr. Ada Tammy, on 5th

February 1963, all these applications and complaints were part of a

deliberate manoeuvre to obtain the replacement of the present examining

magistrate, who was thoroughly conversant with the facts of the case,

by another magistrate. This assumption was strengthened by a statement

in the same letter to the effect that Stögmüller's primary objective

was not his release but a change of magistrate. There were consequently

strong grounds for supposing that, when he discovered that the

examining magistrate was unusually familiar with business transactions

and was thoroughly acquainted with the content of the file, Stögmüller

began to bombard him with applications and complaints in an attempt to

impede the progress of the enquiry.

From a report by the examining magistrate, dated 10th January 1963, it

emerges that Stögmüller was heard by the police authorities on most of

the accusations. It was, however, only possible to hold a detailed and

exhaustive hearing on three accusations because plans for further

hearings had to be interrupted by reason of Stögmüller's motion of 26th

June 1962 challenging the examining magistrate. Since the files had to

be submitted to the higher Court authorities for the examination of

further motions of challenge and complaints, the examining magistrate

had no access to them for six months.

The case-file now consists of 15 volumes averaging 500 pages each and

60 ancillary files. Owing to the large number of offenses and the

complicated nature of the subject-matter, not to mention the attitude

of the accused, investigation was proving extremely difficult. In

particular, the Applicant had refused, as a matter of principle, to

sign a summary record and insisted on verbatim reports of his

statements. Since the examining magistrate did not deny him this right,

his statements on one single accusation often covered as many as 30

typewritten pages. In examining about 70 of the 80 transactions under

review, the examining magistrate had so far heard more than 130

witnesses from all over Austria and in most cases, such evidence had

not been obtained by letters rogatory but personally. The offenses

committed by Stögmüller involve transactions that were deliberately

complicated and, in order to unravel them, the examining magistrate had

to know the entire content of the file relating to each accusation. It

was submitted that the investigation of the accusations against the

Applicant had been carried out with reasonable speed.

The Respondent Government, moreover, referred to the legal

interpretation given by the Commission to the concept "person charged

with a criminal offense."  It was immaterial whether "accused"

("Beschuldigte" - i.e. still under investigation) or "defendant"

("Angeklagte") was meant by that term. The former was by Austrian law

assured of the shortest possible period of detention (Section 190,

paragraph 1 (2) of the Code of Criminal Procedure), and the latter (the

"defendant", i.e. person committed for trial after the indictment has

been drawn up) was equally assured of the most expeditious conduct of

the remaining part of the proceedings by virtue of Section 120 (1) of

the Code of Criminal Procedure.

The Respondent Government concluded that, in these circumstances,

Article 6, paragraph (1) was not violated and that this part of the

Application was manifestly ill-founded.

The Applicant submitted that he had not been brought to trial within

a reasonable time. The investigation of the accusations against him was

opened in December 1957 and was not yet completed.

If the accusations against him were so complex as contended by the

Respondent Government, it was clearly insufficient to assign only one

magistrate to deal with the case. Moreover, it was unnecessary for that

magistrate to hear in person all the witnesses who lived in various

parts of Austria. It would have been more expedient to obtain their

statements by letters rogatory.

He contested that his various applications and complaints had

necessitated a 13 months interruption of the proceedings. He pointed

out that he had not lodged any of these complaints until the autumn of

1962, that is, more than one year after his second arrest. They were

a result of the apparent lack of activity on the part of the examining

magistrate and of the exasperating slowness with which the

investigation progressed. They were not, as alleged by the Government,

an attempt to obstruct the progress of the proceedings.

In respect of the Article 6, paragraph (1) of the Convention in that

the examining magistrate does not carry out the investigation against

the Applicant in an impartial manner.

The Respondent Government submitted that the Applicant's subjective and

therefore immaterial criticisms of the examining magistrate were

manifestly ill-founded and inadmissible.

The Applicant submitted that the examining magistrate carried out his

investigations against the Applicant in an impartial and deliberately

prolonged manner. He added that the magistrate shielded Dr.

Standhartinger, who was also accused and who was related to a judge in

the Vienna circuit.

In respect of Article 6, paragraph (3), of the Convention

The Respondent Government submitted that the Applicant could not be

regarded as "a person charged with a criminal offence" within the

meaning of the above paragraph, as the investigation of the accusations

had not yet been completed. The very purpose of an enquiry, such as was

undertaken against the Applicant, was to establish the facts with a

view either to stopping any criminal proceedings contemplated or to

formulating an indictment against him.

It was further submitted that the Applicant had not adduced any

evidence which had not been taken into consideration in the

investigation. The Applicant submitted that, when a person is detained

pending the investigation of accusations against him, he is within the

meaning of the above paragraph, "charged with a criminal offence". The

examining magistrate had failed to take into account evidence and

testimony in the Applicant's favour.

THE LAW

As regards the alleged violations of Article 5, paragraph (1) (c)

(Art. 5-1-c) and of Article 6, paragraph (1) (Art. 6-1) in that

respectively there had been no reasonable suspicion to justify the

Applicant's arrest and in that the examining magistrate did not carry

out the investigation in an impartial manner.

Whereas, on 7th July 1964, the Commission examined the present

Application in regard to the above allegations;  whereas, on that

occasion the composition of the Commission was as follows: MM

Eustathiades, presiding, Beaufort, Sørensen, Ermacora, Castberg,

Fawcett, Maguire, Triantafyllides, Welter and Balta;

Whereas, in respect of the alleged violation of Article 5, paragraph

(1) (c) (Art. 5-1-c), it pointed out that the Article provided as

follows: "No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law ... the

lawful arrest and detention of a person effected for the purpose of

bringing him before the competent legal authority on reasonable

suspicion of having committed an offence or when it is reasonably

considered necessary to prevent his committing an offence or fleeing

after having done so."

Whereas, in its partial decision of 6th July 1959 on the admissibility

of Application No. 343/57 (Nielsen against Denmark), the Commission

held that "in determining what is 'a reasonable suspicion of having

committed an offence' permitting the arrest or detention of a person

under Article 5, paragraph (1) (c) (Art. 5-1-c) regard must be had to

the circumstances of the case as they appeared at the time of the

arrest and detention ...".

Whereas, in view of the multitude of accusations made against the

Applicant by private persons who had business contacts with him, the

Commission felt that the arrest of the Applicant on 25th August 1961

could not be said to have been made in violation of the above Article

(Art. 5-1-c); whereas it followed that this part of the Application was

considered to be manifestly ill-founded and rejected in accordance with

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

Whereas the Commission further held, in respect of the alleged

violation of Article 6, paragraph (1) (Art. 6-1), that the Applicant

had failed to submit any evidence to support his allegation that the

investigation proceedings, even though progressing very slowly, were

not conducted in an impartial manner by the examining magistrate;

whereas it followed that this part of the Application was also

considered to be manifestly ill-founded and rejected in accordance with

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

As regards the remaining parts of the Application

Whereas during the oral hearing held before the Commission on 1st

October 1964 the Applicant's lawyer, Dr. Tammy, stated that he only

maintained his claim in regard to the alleged violation of Article 5,

paragraph (3) (Art. 5-3) of the Convention by reason of the Applicant's

detention for periods totalling 2 years and 7 weeks;

Whereas it is thus clear that the Applicant withdrew his remaining

allegations under Article 6, paragraphs (1) and (3) (Art. 6-1, 6-3) of

the Convention;  Whereas in these circumstances the Commission decides

not to avail itself of its competence further to examine ex officio

these allegations;  Whereas, consequently, the only question upon which

the Commission has to decide is whether or not the Applicant's

detention from 3rd March to 21st April 1958 and from 25th August 1961

to 26th August 1963 constitutes a violation of Article 5, paragraph (3)

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

(Art. 5-3) of the Convention provides as follows: "Everyone arrested

or detained in accordance with the provisions of paragraph (1) (c), of

this Article (Art. 5-1-c) ... shall be entitled to trial within a

reasonable time or to release pending trial. Release may be conditional

by guarantees to appear for trial."

Whereas the Applicant alleges that this detention pending trial for a

period of more than two years violates the above provisions;

Whereas the Respondent Government has submitted that, in view of the

complexity of the case and the difficulties of the investigation of the

charges against the Applicant, such period is not excessive nor

unreasonable and that the Application is, in this respect, manifestly

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

of the Convention;  Whereas, in a series of previous decisions

concerning the question of the length of detention pending trial, the

Commission has held that the above provision of Article 5 (Art. 5) does

not lay down any definite standard, but should be interpreted according

to the circumstances of each case (See Applications Nos. 530/59 - S.

v. the Federal Republic of Germany - Yearbook III, page 184, 920/60 -

W. v. the Federal Republic of Germany - Collection of Decisions, Volume

8, page 46 and 1546/62 - ibid., Volume 9, page 58); whereas in these

cases the Commission found, on various grounds, that the special

circumstances of the cases concerned justified periods of detention

which were only slightly shorter than the period under review in the

present case;

Whereas, on the other hand, in its decision on the admissibility of

Application No. 1936/63 (Had v. Austria) the Commission held that it

could not consider manifestly ill-founded an allegation that a period

of detention of almost two years was in violation of the above

provision;

Whereas the Commission also refers to its decision of 2nd July 1964 by

which it decided admissible Application No. 2122/64 (Wemhoff v. the

Federal Republic of Germany).

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 an application whose lack of

foundation cannot be so described (see Applications No. 1727/62 -

Collection of Decisions, Volume 12, page 29 and No. 2122/64).

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

preliminary examination of the information and arguments submitted to

the Commission by the Parties. Whereas the Commission finds that the

Applicant's complaints are of such complexity that their determination

should depend upon an examination of the merits of the case; whereas

it follows that they cannot be regarded as manifestly ill-founded

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

Convention and cannot be declared inadmissible;

Now therefore, to the extent that the present Application was not

decided by the Commission in its session on 7th July 1964 and was

maintained by the Applicant during the oral hearing on 1st October

1964, the Commission declares it ADMISSIBLE and retains it for further

examination in accordance with Articles 28 et seq. (Art. 28) of the

Convention.