SEPARATE OPINION OF JUDGE HOLMBÄCK

According to my opinion the Austrian authorities (the investigating judges, the Judges ’ Chamber of the Regional Court of Linz , the President of that court, the Regional Court itself, the Linz Court of Appeal) had sufficient reasons to refuse the requests of Ringeisen to be released pending trial. Consequently, I could not join the majority of the European Court in its conclusion that the Republic of Austria violated Article 5, paragraph (3) (art. 5-3), of the Convention.

SEPARATE OPINION OF JUDGE ZEKIA

The main issues involved in this case are two:

1. Whether Ringeisen was a victim of a violation of Article 6, paragraph (1) (art. 6-1), of the Convention in respect of

(a) the proceedings introduced by him with a view to securing the approval of the Austrian authorities for a transfer of farmland in his name;

(b) the length of time taken in the determination of the criminal charges brought against him;

2. Whether the periods of Ringeisen ’ s detention exceeded the reasonable time laid down in Article 5, paragraph (3) (art. 5-3), of the Convention.

For the factual aspect of the case I am content to refer to the judgment of the Court. For the issue No. 1, I respectfully associate myself with the views taken and conclusions arrived at by the Court.

As to the second issue, namely, whether Ringeisen was kept in detention pending his trial beyond a reasonable time, I feel unable to share the opinion of my learned colleagues constituting the majority of the Court. I proceed therefore to give, as briefly as possible, my reasons for doing so.

The time of the detention of Ringeisen can be divided into three periods:

1st period lasted from 5th August 1963 to 23rd December 1963 ;

2nd period lasted from 15th March 1965 to 14th January 1966 – the latter date being the date of his conviction;

3rd period lasted from 14th January 1966 (date of his conviction) to 20th March 1967 (date of his release).

If, in considering the alleged violation of Article 5 (3) (art. 5-3), I could properly put together the three periods of detention given above, I would not have any difficulty in joining the majority and finding a contravention on the part of the Republic of Austria of Article 5 (3) (art. 5-3) of the Convention. In my view, however, we are not entitled to take into account, for the purpose of assessing the reasonableness of the length of the detention under Article 5 (3) (art. 5-3), the period of Ringeisen ’ s detention after his conviction. Such detention having been effected or continued following the conviction cannot be considered on the same footing as a detention under Article 5 (1) (c) (art. 5-1-c) with which Article 5 (3) (art. 5-3) is solely concerned. On the other hand, we cannot assume that a detention ordered under Article 5 (1) (c) (art. 5-1-c), even if not expressly revoked, can continue to be reckoned as detention for the purpose of Article 5 (3) (art. 5-3) after the person detained is convicted by a competent court. Moreover, a person kept in detention consequent upon conviction cannot complain of deprivation of liberty under Article 5 (3) (art. 5-3) which applies only to persons in custody awaiting their trial. In this connection, I can usefully refer to paragraph 9 at page 23 in the Wemhoff judgment ( 27th June 1968 ).

Accepting the suspensive effect of an appeal and a plea of nullity entered by a convicted person against the conviction and the sentence of imprisonment - and this might be the case in certain systems of law prevailing on the Continent - I am yet far from being persuaded that a period of detention after conviction falls within the ambit of Article 5 (3) (art. 5-3).

The fundamental principle underlying Article 5 (3) (art. 5-3) in my view is what is contained in Article 6 (2) (art. 6-2) which reads "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

Article 5 (1) (a) (art. 5-1-a) expressly provides that a person may properly be deprived of his liberty after conviction by a competent court. From what is quoted it can safely be deduced that the presumption of innocence, after conviction by a competent court, is replaced by a presumption of guilt. The presumption of guilt is only a rebuttable one; it becomes final and conclusive after the decision of an appellate court or by lapse of the time allowed for appeal if no appeal is lodged against such conviction.

Furthermore, I would like to say a few words on the character of the detention of the applicant after his conviction on 14th January 1966 .

It has been argued that Ringeisen was not detained after 14th January 1966 on the strength of his conviction but only by virtue of an order of detention issued against him on 15th March 1965 – on fraudulent bankruptcy charges - which in reality continued to be in force even after the date of conviction and up to the time he was released from detention in that case. From this it might be inferred that the continued detention after the date of conviction cannot be considered as one under Article 5 (1) (a) (art. 5-1-a). Bearing in mind the suspensive effect of the applicant entering an appeal and plea of nullity and of what has been stated on that occasion before the court by the counsel for the prosecution, this view carries a certain amount of weight. But against this one might advance the following points. For the purpose of Article 5 (3) (art. 5-3) the kind of detention we are concerned with is the one effected under Article 5 (1) (c) (art. 5-1-c). Therefore in order to rule on the relevancy of the post conviction period of detention for Article 5 (3) (art. 5-3), we must be able to say that the detention of the applicant during such period did not lose its previous character. I very much doubt this line of reasoning and I am inclined rather to the opposite view on this point.

The conviction of January 1966 ordering the imprisonment of Ringeisen was there without being set aside by any judicial authority and, indeed, the conviction for fraud on the 78 purchasers was upheld by the Supreme Court and the reassessment of sentence, together with other matters, was referred back to the trial court. Apart from this, as early as 12th May 1965 the Linz Regional Court had ordered the detention of Ringeisen in the fraud case. While the fraudulent bankruptcy proceedings may not have been substantiated by evidence and were in fact later withdrawn, the main charge of fraud, however, ended with a conviction which was upheld by the appellate court.

The utmost one might say is that the exact reason or reasons for the detention of the Applicant after his conviction is or are not clear. But if one can reasonably attribute more than one reason for such detention and if there is only one valid reason justifying the continuation of the detention, that is enough to take the third period out of consideration under Article 5 (3) (art. 5-3).

One must not lose sight of the fact that the predominant object of Article 5 (3) (art. 5-3) is to guard against keeping a person in custody beyond such time as is reasonably required to prepare his case and bring him before the court for a judicial decision. In other words, the aim is not to keep suspects in detention in the absence of adequate evidence and not to punish them only on the ground of suspicion. After the hearing of evidence and the conviction by the competent court in January 1966, it is very difficult to accept that there is room for the operation of Article 5 (3) (art. 5-3).

For these reasons, I am of the opinion that the period of detention of Ringeisen as from 14th January 1966 to 20th March 1967 cannot be added to the other periods of detention in considering the alleged violation of Article 5 (3) (art. 5-3).

I come now to the remaining two periods.

The first period of detention lasted only four months and eighteen days. Taken by itself this period is not unreasonably long for investigating a great number of frauds allegedly committed by the Applicant.

Can we consider periods 1 and 2 conjointly? I do not think we can properly do this either. The alleged commission of frauds involving not less than 78 purchasers and a number of fraudulent conversions preceded the fraudulent bankruptcy charges, the investigation of which started much later.

Similar offences committed within a short period of time might reasonably be expected to be dealt with together by investigating authorities. A suspected person in custody might claim protection under Article 5 (3) (art. 5-3) for the whole lot at one time. But when distinct offences are committed much later or are discovered much later and the same suspect rearrested and kept in custody for a subsequent group of offences, fresh investigations start and a new period of detention begins to run. In such a case, investigating authorities are amply justified in seeking to exclude from consideration earlier periods of detention under Article 5 (3) (art. 5-3).

Proximity of time and place is an important factor in this respect. In such cases, different periods of detention should be considered separately, but not conjointly, even if the latter group of offences are in some way or other related to the former.

It remains for me now to consider whether the second period of detention taken alone amounts to a violation of Article 5 (3) (art. 5-3). I am not convinced that in the circumstances of the case there is a violation.

The second period of detention lasted ten months. The authorities, including the investigating judges, had to examine multiple offences alleged to have been committed by Ringeisen . The Applicant uninterruptedly flooded the courts and other authorities with all sorts of applications and appeals, alleging bias on the part of the judges and other authorities, challenging the integrity of the judges and attacking the composition of the courts. His complaints turned out to be entirely untenable and unfounded. In other words, he was all the time abusing the process of the court with the result of prolonging unnecessarily the proceedings in the investigation and of delaying the completion of his case by preventing it from being brought before the court for trial. The conduct of the complainant evidently contributed to a great extent to the length of his detention. In the circumstances I do not think that violation of Article 5 (3) (art. 5-3) by the Austrian authorities has been established.