CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 octobre 1964

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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.