THE FACTS

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

The Applicant is an Austrian citizen born in 1922 and is the manager

of the transport firm ITEKA in Vienna.

Preliminary investigations into a suspected fraud by the Applicant

under Sections 197, 200, 201 (a) and (d), 203 and 5 of the Penal Code

were opened in the winter of 1960 - 61 at the Regional Court of Vienna.

In particular, it is clear from official documents submitted to the

Commission that he was suspected of having between October 1952 and

September 1956, forwarded to a certain Lothar Rafael in Trieste,

Holland, Switzerland and other countries, various consignments of soap,

milling tools, soldering sticks, soldering wire, clothing, electrical

fittings, gym shoes, moleskins and machine spares. He was further

suspected of having procured currency purporting to be the proceeds

from exports, of having financed the purchase of such export goods and

provided guarantees for their transport, thereby knowingly assisting

Rafael, in return for a share of the proceeds, and, of having

improperly obtained refunds of indirect taxes.

The payment of such refunds entailed a loss to the State of some 6-7

million schillings. Finally, the Applicant was suspected of having,

between November 1954 and August 1955 carried out similar transactions

involving tax refunds amounting to 4 million schillings on behalf of

Dr. Franz Schmuckerschlag, who was notorious for previous export

swindles.

The Applicant was held in custody in connection with the present case

from 24th February 1961 to 12th May 1961, on which date he was released

without bail. Later the same year, he obtained permission from the

examining judge to spend a holiday in Finland after which he returned

to Vienna. Following the extradition to Austria on 21st December 1961

of Lothar Rafael, who had been arrested in the Federal Republic of

Germany on 22nd June 1961, and his interrogation by the authorities,

the Applicant was heard, on 3rd, 4th, 5th and 6th July 1962, by the

judge in charge of the investigation of the case and, on 10th and 11th

July, he was confronted with Rafael. Apparently, in view of the weight

of suspicion hanging over him, another trip to Finland, which he was

planning for 1962, was interpreted as an attempt to flee the country

and escape further criminal proceedings and, on 12th July 1962, the

Applicant was arrested for the second time and has since been held in

detention pending trial, the indictment having been drawn up on 26th

March 1964.

At the time of his arrest the Applicant was suspected of having

committed certain other crimes in respect of which he was acquitted in

1963.In order to illustrate the difference between the situation in 1961 and

at the present time he has submitted that in 1961:

(1) he was a suspected person in connection with two separate cases

then under investigation;

(2) the offences allegedly committed by him involved about 40 million

Austrian schillings;

(3) he received permission to spend - and did spend - his holidays in

Finland and, in January 1962, he similarly received permission to go

to the Federal Republic of Germany.

(4) bail was not requested as a condition for his release.

On the other hand, at the present time,

(1) he is charged in one case only, having in the meanwhile been

acquitted on other charges;

(2) the offenses alleged to have been committed by him involve only

about 6 million Austrian schillings;

(3) he is being kept under arrest on the pretext of preventing his

fleeing the country;

(4) his offer of bail of 250,000 Austrian schillings has been rejected.

The Applicant's protest against arrest was dismissed on 31st July 1962

by the Judges' Council of the Regional Court (Landesgericht) of Vienna

and, on 10th September 1962, by the Court of Appeal (Oberlandesgericht)

of Vienna.

A formal complaint (Haftbeschwerde) was lodged by the Applicant on 16th

October 1962 but this was also dismissed by the same courts on 27th

December 1962 and 19th February 1963 respectively in sessions at which

the Public Prosecutor was heard (nach Anhörung) but from which the

Applicant and his counsel were excluded.

These proceedings were conducted in accordance with Articles 113 and

114 of the Code of Criminal Procedure which provide as follows:

Article 113 (1) Any person who, during the preliminary investigation,

the preliminary examination or the proceedings following the

introduction of the formal accusation in writing, considers himself to

be aggrieved by a measure or a delay on the part of the examining

magistrate shall have the right to request a decision on the matter

from the Judges' Council (Ratskammer) and to present his application

either in writing or verbally to the examining magistrate or directly

to the Judges' Council ...

(2) The Judges' Council decides in a non-public session having heard

the examining magistrate and the public prosecutor.

Article 114 (1) As a general rule no appeal is allowed against such

decisions by the Judges' Council. Appeal (Beschwerde) can, however, be

lodged with the Courts of Appeal by the Public Prosecutor ... and the

accused person against such decision if it relates to the question of

... prolongation of, or release from, detention pending trial or

fixation of bail ...

(2) ... The Court of Appeal decides on the appeal in a non-public

session having heard the superior public prosecutor.

On 16th September 1962, the Applicant's daughter, Maria Neumeister,

sent a letter to the Minister of Justice offering bail of 1 million

Austrian schillings to obtain her father's release.

On 8th January 1964, the Regional Court of Vienna authorised the

Applicant's release on bail of 2 million Austrian schillings, but on

31st March 1964, the Court reduced this sum to 1 3/4 million

schillings.

It appears that, immediately after this decision had been given, the

Applicant's previous lawyer, Dr. Michael Stern, offered to find bail

of 1 million schillings without previously obtaining the Applicant's

authorization to make this offer. Dr. Stern informed the Commission's

Secretary of this on 14th April 1964.

On 3rd June 1964, the Regional Court of Vienna further reduced the

Applicant's bail to 1 million schillings but the Applicant declared

himself unable to raise this sum. During the oral hearing before the

Commission the Applicant's present lawyer, Dr. Leutgeb, submitted that,

at a hearing before the Regional Court between 31st March 1964 and 3rd

June 1964, the Applicant had withdrawn his instructions from his former

lawyer and informed the judge that he was not financially in a position

to accept release on the above bail with the result that the Applicant

is still in prison. The truth of this assertion has not been

ascertained by the Commission.

The submissions of the Parties

Whereas in his application form, in his reply of 6th February 1964 and

during the oral hearing on 6th July 1964 the Applicant alleges

violations of

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

without reasonable suspicion of having committed a crime;

- Article 5, paragraph (2) in that he was not informed of the charges

against him;

- Article 5, paragraphs (3) and (4) in that the investigation of the

charges against him does not necessitate the prolongation of his

detention and, that he should be released pending trial or be brought

to trial within a reasonable delay;

- Article 6, paragraphs (1) and (3) (b) and (c), in that the principle

of "equality of arms" was not respected during the hearings before the

Regional Court and the Court of Appeal of Vienna and, in this respect,

he refers to the decisions in the Pataki-Dunshirn cases (Applications

Nos. 596/59 and 789/60);

Whereas the Respondent Government has replied to the Applicant's

submission in its written observations of 24th January 1964 and at the

oral hearing on 6th July 1964;

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

summarised as follows:

In respect of Articles 25 and 26 of the Convention

During the oral hearing the Respondent Government submitted that the

Applicant could not be considered a "victim" of a violation of the

Convention within the meaning of Article 25 and that, having regard to

the provisions of Article 26, he had not exhausted the domestic

remedies available to him under Austrian law.

The Government submitted that, on 3rd April 1964, the Applicant had

lodged a request for his release on payment of bail of 1 million

Austrian schillings and that this request was granted on 3rd June 1964.

Article 25, paragraph (1), stipulated that a person lodging an

application with the Commission must be a "victim" of a violation of

the Convention and, in the present case, the Applicant was clearly not

such a "victim" as the decision of which he complained fully complied

with his own request.

It was further submitted that the Applicant had not availed himself of

the possibility of introducing a new request for his release on bail

to be fixed at a sum which he is prepared to pay. Under Article 113 of

the Code of Criminal Procedure such a request may be introduced at any

time and thus it offered him the possibility of obtaining a redress

against the decision of 3rd June 1964 which, according to the

Applicant, was based on an unauthorised offer of bail made by his

lawyer.

The Applicant submitted in reply that he had never consented personally

to a bail of 1 million Austrian schillings as he maintained that he did

not commit the offences with which he was charged and that he did not

possess the sum required for his release. The offer was made without

his authority by Dr. Stern, the Applicant's former lawyer, and the

Applicant had never agreed to a fixed bail of more than 250,000

schillings.

It was further submitted that Article 26 had been duly complied with

by the Applicant. As, indeed, although it was true that he could have

lodged a new request for his release by offering to find bail of a

lower sum than 1 million schillings, it was hardly to be expected that

such a request would be successful. The Court would almost certainly

not have consented to a reduction of the amount which it had fixed a

month earlier.

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

The Respondent Government submitted that both the incriminating

statements made by the chief offender, Rafael, and the evidence

collected inside and outside Austria, provided reasonable grounds for

suspecting the Applicant of unlawful activities (fraud involving 10

million schillings). The Applicant's detention was therefore justified

in the interests of justice. Furthermore, there was a danger of the

Applicant fleeing the country, particularly after Rafael, who had also

sought refuge abroad and was returned to Austria following a request

for his extradition, had been placed under arrest. Suspicion against

the Applicant was further increased by the fact that he did not lodge

any objections to the preliminary examination or to the indictment.

Consequently, it was clear that the Convention had not been violated

to the extent alleged by the Applicant.

The Applicant submitted that his arrest was due to incriminating

statements which were made without any foundation by Mr. Rafael. He

contested the suggestion that he had any intention of leaving Austria

permanently in order to escape the consequences of his alleged

offences. Indeed, if this had been the case, he would have had ample

opportunity to do so in the summer of 1961 and in January 1962 when he

received permission to go abroad and even during the few days between

his confrontation with Rafael on 3rd, 4th, 5th and 6th July and his

arrest on 18th July 1962. The Applicant's arrest was contrary to the

provisions of the Convention as there was no reasonable suspicion

against him nor any danger of his fleeing the country. He denied that

any importance could be attached to his failure to object to the

investigations or to the indictment. Such protest would have only been

a formality and would have only impeded the progress of the case.

In respect of the alleged violation of Article 5, paragraph (2)

The Applicant's lawyer submitted during the oral hearing that the

Applicant had never been informed in detail and in writing of the

charges which were brought against him and which formed the basis of

his detention.

The Respondent Government made no particular submission on this issue.

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

The Respondent Government submitted that there was no general standard

for interpreting the term "within a reasonable delay" and this should

be determined in relation to the special circumstances of each

individual case. The present case, already complex, was further

complicated by the fact that part of the evidence required to convict

or acquit the 10 accused persons had to be obtained abroad (in the

Middle East, in African and Latin American States as well as in the

Federal Republic of Germany, Italy, Switzerland, the Netherlands and

Liechtenstein). The case file comprised 24 volumes and 8 files of

supporting documents. It was also relevant to point out that the

accused persons obstructed the investigation by filing numerous

complaints against the officials involved. In these circumstances, a

period of detention of 2 years could not be described as unreasonably

long. Consequently, this part of the Application would appear to be

unfounded.

The Applicant did not contest that the investigation was complicated

and that the case was complex. Nevertheless, it was contrary to the

above provisions of Article 5 to keep a person detained for almost two

years pending his trial and to fix bail at a sum which, as in the

present case, was obviously beyond his means. If the case was as

complex as the Government contended, the Court must assign several

persons to conduct the investigation in order to bring about his trial

more speedily.

In particular he submitted that the situation was in certain respects

different in 1961, when he was released from prison, from the position

in 1963. This difference is best illustrated as follows:

1. In 1961 he was a suspected person in connection with two separate

cases then under investigation;

2. the offences allegedly committed by him involved about 40 million

Austrian schillings;

3. he received permission to spend - and did spend - his holidays in

Finland and, in January 1962, he similarly received permission to go

to the Federal Republic of Germany;

4. bail was not requested as a condition for his release.

On the other hand, at the present time

1. he is a suspect in one case only, having in the meanwhile been

acquitted on other charges;

2. the offences alleged to have been committed by him involve only

about 6 million Austrian schillings;

3. he is being kept under arrest on the pretext of preventing his

fleeing the country;

4. his offer of bail of 250,000 Austrian schillings had been rejected.

In respect of the alleged violation of Article 5, paragraph (4)

The Respondent Government submitted that this provision did not prevent

the Court in the present case from requiring the Applicant, as provided

for in municipal law (Article 192 of the Code of Criminal Procedure),

to put up as bail a sum fixed in relation not only to the damages

resulting from the alleged offences (approximately 10 million

schillings), but also to the prisoner's own financial circumstances and

the means of the person standing surety. Bail had in fact been fixed

on this basis and it would thus appear that this part of the

Application was unfounded.

The Applicant submitted that the Courts had, when fixing bail, failed

to investigate the Applicant's financial position. Bail could not,

under the Convention, be fixed at a sum which would, for all practical

purposes, prevent a prisoner's release from detention. Regard should

also be had to the possible sentence which would be imposed upon the

Applicant if convicted and it was submitted that such sentence could

scarcely exceed two years which was the period already spent by him in

detention.

In respect of the alleged violations of Article 6 (1)

The Respondent Government did not contest that, in the examination by

the courts of the Applicant's petition for release, prosecution

officers were "heard" in the absence of the accused and his defence

counsel. It was, however, submitted that Article 6 did not apply to

these proceedings as they were not part of the proceedings designed to

ascertain the validity of the charge or to establish the guilt or

innocence of the Applicant;  their purpose was merely to determine the

question of the continuation of his detention. These proceedings were

not designed to determine a "civil right" of the Applicant within the

meaning of Article 6 and in this respect, reference was made to

Austrian law and its criteria for defining civil rights. If Article 6

was applicable to these proceedings, Article 5, paragraph (4), would

be superfluous and this was clearly an untenable assertion. The

Applicant's reference to Article 6 of the Human Rights Convention and

the identification by him of his case with the Pataki-Dunshirn cases

were irrelevant. Indeed, during the proceedings under review, the

Public Prosecutor was at a disadvantage in comparison with the accused.

The reason for the summary nature of the proceedings was to avoid

delays in dealing with requests for release. This part of his

Application was consequently unfounded.

The Applicant submitted that, during the proceedings relating to the

justification of his detention, the Applicant and his lawyer were

excluded from the court sessions whereas the Public Prosecutor was

heard by the court. It was contended that the principle laid down by

the Commission, in interpreting Article 6, paragraph (1), in the cases

of Pataki and Dunshirn, applied with equal force during the proceedings

now at issue. It was not admitted by the Applicant that the Public

Prosecutor was at a disadvantage in comparison with the prisoner and

the defence in general. On the contrary, the opposite view was

expressed in a public statement by the Minister of Justice who stated,

in the interest of the accused, that the principle of equality of arms

ought also to be observed during the proceedings under review.

In respect of the alleged violation of Article 6, paragraph (3)(b) and

(c)

The Respondent Government made no particular submissions on this issue.

The Applicant, apart from referring to the above paragraph in his

Application form, did not further pursue his allegation.

THE LAW

As regards the general objection made by the Respondent Government

(Articles 25 and 26 (Art. 25, 26) of the Convention)

Whereas Article 25, paragraph (1), (Art. 25-1) of the Convention

provides that:

"The Commission may receive petitions ... from any person ... claiming

to be the victim of a violation by one of the High Contracting Parties

of the rights set forth in this Convention"; and whereas Article 26

(Art. 26) provides: "The Commission may only deal with a matter after

all domestic remedies have been exhausted, according to the generally

recognised rules of international law ..."

Whereas the Respondent Government has submitted that the Applicant is

no longer a "victim" within the meaning of Article 25 (Art. 25) and,

further, that, by failing to lodge a renewed request for release on

bail after the decision of 3rd June 1964, the Applicant has not

exhausted the domestic remedies available to him in pursuance of

Article 26 (Art. 26);

Whereas, first, the Respondent Government has, by its submission that

the Applicant was not a "victim" within the meaning of Article 25

(Art. 25) contended that the Regional Court of Vienna, in its decision

of 3rd June 1964 fixed the Applicant's bail at 1 million schillings in

accordance with the offer made by his own lawyer, Dr. Stern;

Whereas it appears from Dr. Stern's letter to the Commission of 14th

April 1964 that he undertook on the Applicant's behalf to find bail of

1 million schillings without having received his client's

authorization;

Whereas it has been submitted by the Applicant's present lawyer during

the oral hearing that prior to the decision of 3rd June 1964 the

Applicant informed the Regional Court of Vienna that he was unwilling

and financially unable to find bail fixed at that amount; whereas,

consequently the Applicant is still detained pending trial and has not

been released on conditions which he considers to be reasonable;

Whereas, secondly in respect of the objection made by the Government

under Article 26 (Art. 26) it is true that, under Articles 113 and 114

of the Code of Criminal Procedure, the Applicant can at any time lodge

a request for his release on bail and during these proceedings offer

such bail as he considers reasonable in view of his financial

situation;

Whereas the Commission, in taking into consideration the bail fixed by

the Austrian court at 1 million schillings, is satisfied that there was

no reason to believe that the Austrian courts would, about one month

later, order the Applicant's release on bail of 250,000 Austrian

schillings as had been offered by the Applicant.

Whereas, under Article 26 (Art. 26) the question whether or not a

domestic remedy must be exhausted before the Commission can be seized

if a case is to be determined according to the generally recognised

rules of international law; whereas in its decision on the

admissibility of Application No. 514/59 (X. v. Austria - Yearbook III,

page 196), in which reference was made to the jurisprudence of the

Permanent Court of International Justice, the Commission held that it

was not necessary to have recours to domestic tribunals if the result

must inevitably be the repetition of a decision already pronounced;

Whereas it follows that, in the circumstances of the present case, the

remedy now open to the Applicant cannot be considered an effective and

sufficient remedy which under Article 26 (Art. 26) of the Convention,

was bound to be exhausted by the Applicant;

Whereas, therefore, the Commission rejects the general objection to the

admissibility of the Application made by the Respondent Government on

the basis of Articles 25, paragraph (1) and 26 (Art. 25-1, 26) of the

Convention;

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

(Art. 5-1-c)

Whereas Article 5, paragraph (1) (c) (Art. 5-1-c) of the Convention

provides as follows: "No-one shall be deprived of his liberty save in

the following cases and in accordance with a procedure prescribed by

law ... 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 the Applicant alleges that on 12th July 1962, the date of his

second arrest, the police officials had no reasonable suspicion that

he had committed an offence within the meaning of the above paragraph;

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 the present case, when interrogated by the police, the said

Rafael made statements which incriminated the Applicant to such an

extent that the question arose, not unreasonably, whether or not the

Applicant was implicated in the illegal transactions imputed to Rafael;

Whereas the Commission finds that, in the light of the circumstances

of the case such as it presented itself to the Austrian authorities in

July 1962, it cannot be excluded that there was a reasonable suspicion

in the view of the Austrian authorities, that the Applicant had

committed offences under the provisions of the Criminal Code; whereas,

consequently, the Applicant's arrest on 12th July 1962 and his

subsequent detention have not resulted in a violation of Article 5,

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

Whereas it follows that this part of the Application is manifestly

ill-founded and must be rejected in accordance with Article 27,

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

As regards the alleged violation of Article 5, paragraph (2) (Art. 5-2)

Whereas Article 5, paragraph (2) (Art. 5-2), of the Convention provides

as follows: "Everyone who is arrested shall be informed promptly ...

of the reasons for his arrest and of any charge against him";

Whereas the Applicant alleges that he was not so informed of the

reasons for his arrest and of the charges against him; whereas it is

pointed out that, in connection with the investigation of the case

which led to his arrest on 12th July 1962, the Applicant had previously

been detained for a period of eleven weeks, namely, from 24th February

until 12th May 1961, that he had been interrogated in detail by the

investigating judge on 3rd, 4th, 5th and 6th July 1962, which was 2

weeks prior to his arrest, and that he was confronted with the said

Rafael on 10th and 11th July 1962; whereas the Commission is thus

satisfied that the Applicant must have been fully aware of the reasons

for his arrest and the nature of the charges against him;

Whereas it follows that this part of the Application is manifestly

ill-founded and must be rejected in accordance with Article 27,

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

As regards the alleged violations of Article 5, paragraph (3) and

Article 6, paragraph (1) (Art. 5-3, 6-1) of the Convention, in that the

Applicant has been detained pending trial for a period of almost two

years.

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 almost 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 it is true that Article 27, paragraph (2) (Art. 27-2) of the

Convention requires the Commission to declare inadmissible any

application from an individual which it considers to be "manifestly

ill-founded";

Whereas, in a series of previous decisions concerning the question of

the length of detention pending trial, the Commission has held that the

above provisions of Articles 5 and 6 (Art. 5, 6) do 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 - 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 of almost two years which is under

review in the present case;

Whereas in the present case, however, a preliminary examination of the

information and arguments submitted to the Commission by the Parties

does not enable it to determine here and now whether the special

circumstances invoked by the Respondent Government are of such a nature

so as to exclude any possibility of such violation; whereas it follows

that the Applicant's complaints in regard to the refusal to release him

on reasonable terms and to the length of his detention pending trial

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 on that ground;

As regards the alleged violation of Article 6, paragraph (1) (Art. 6-1)

as read in conjunction with Article 5, paragraphs (3) and (4)

(Art. 5-3, 5-4) of the Convention

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

that: "In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to fact and

public hearing ..."; and whereas Article 5, paragraph (4) (Art. 5-4)

provides that: "Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the lawfulness

of his detention shall be decided speedily by a court ..."

Whereas the Applicant alleges that, during the proceedings by which the

lawfulness of his detention was decided, he did not receive a fair

hearing within the meaning of Article 6 (Art. 6) in that the Public

Prosecutor was present at the session of the Court while the Applicant

and his lawyer were excluded; whereas, in this respect, he has referred

to the findings of the Commission in its Report on Applications Nos.

596/59 (Pataki) and 789/60 (Dunshirn);

Whereas the Respondent Government has submitted that Article 6

(Art. 6) does not apply to the proceedings mentioned in Article 5,

paragraph (4) (Art. 5-4), and aimed at deciding the question whether

or not the Applicant should be released on bail or detained for a

further period of time;

Whereas, in its decision on the admissibility of Application No.

1599/62 (X. v. Austria - Collection of Decisions, Volume 10, page 5)

the Commission stated as follows: "Whereas, ..., insofar as the

Applicant complains that the proceedingsheld in 1961 before the Court

(Oberlandesgericht) in A. were not held in the presence of both parties

and that it was the duty of this Court to give a decision on the

continued detention of X; whereas, therefore, it was the duty of the

Court to settle a dispute as to the right of the accused as to his

liberty, guaranteed by Article 5 (Art. 5) of the Convention; whereas,

it might be asked whether such dispute did not relate to a civil right

in the sense of Article 6 (1) (Art. 6-1) of the Convention;

Whereas, the procedure referred to would, in that event, raise problems

in respect of the latter provision as regards the "equality of arms"

between the prosecution and the defence (Waffengleichheit);";

Whereas, in that Application, the Commission was, however, not called

upon to pursue, the matter as the Applicant had failed to comply with

the provisions of Article 26 (Art. 26) of the Convention; whereas in

the present case, however, the Applicant has duly complied with these

provisions;

Whereas the Commission finds that, at the present stage of the

proceedings, it cannot be excluded that the lack of "equality of arms"

between the prosecution and the defence during the proceedings before

the Regional Court of Vienna in respect of the Applicant's request for

release might have resulted in a denial of "fair hearing" within the

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

whereas it follows that this part of the Application cannot be declared

inadmissible as being manifestly ill-founded; As regards the alleged

violation of Article 6, paragraph (3) (b) and (c) (Art. 6-3-b, 6-3-c)

of the Convention

Whereas, apart from referring to this paragraph in his Application

form, the Applicant has not pursued this issue during the subsequent

proceedings before the Commission;

Whereas the Respondent Government has made no particular submissions

on the issue;

Whereas, in these circumstances, the Commission does not find it

necessary to make any findings on this alleged violation of the

Convention;

Now therefore the Commission

rejects the objection made by the Respondent Government as to the

admissibility of the Application in its entirety; rejects, however as

being manifestly ill-founded the allegations made by the Applicant in

respect of Article 5, paragraph (1) (c) and (2) (Art. 5-1-c, 5-2) of

the Convention, but, declares ADMISSIBLE and retains the allegations

made by the Applicant in respect of Articles 5, paragraph (3)

(Art. 5-3) and 6, paragraph (1) (Art. 6-1) and of Article 6, paragraph

(1) (Art. 6-1) as read in conjunction with Article 5, paragraphs (3)

and (4) (Art. 5-3, 5-4) of the Convention.