CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 mai 1967

.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 presented by the Parties may be summarised as follows:   The Applicant is an Austrian citizen, born in 1929 and living at Innsbruck. He complains of the duration of certain criminal proceedings against him before the Austrian courts and of the length of his detention pending trial. The details of these proceedings are as follows:   I. In 1961 the Applicant was suspected of having instigated a certain Dr. Y to organise with Italian nationals a course on explosives and of having ordered dynamite for the purpose of committing acts of terrorism abroad. A criminal investigation (Voruntersuchung) against him and other persons was opened by the Regional Court (Landesgericht) of Graz and, on .. August, 1961, the Applicant was arrested on suspicion of having committed crimes under Articles 5 and 6 of the Explosives Act (Sprengstoffgesetz) and Article 5 of the Criminal Code (Strafgesetz). The warrant for his arrest was based on Article 175, paragraph (1), Nos. 2, 3 and 4, and Article 180 of the Code of Criminal Procedure (Strafprozessordnung). Article 175, paragraph (1) states as follows:   "(1) The investigating judge may, even without previous summons, order a person suspected of a crime (Verbrechen) or misdemeanour (Vergehen) to be brought before him and to be taken into temporary custody where:   1. ... 2. the suspected person has made preparations to abscond or where, by reasons of the severity of his respective sentence, his itinerant way of life or because he is unknown in the neighbourhood, homeless or without papers, or for any other good reason, it appears likely that he will abscond; 3. the suspected person has attempted to influence witnesses, experts or other accused in a manner likely to prevent the ascertainment of the facts or otherwise to hinder the investigation by destroying traces of the crime or misdemeanour, or where there are good grounds to fear that this might occur; 4. particular circumstances justify the fear that the accused will repeat a completed action or carry out an attempted or threatened action." On .. October, 1961, the Applicant filed a petition for release from detention on a solemn undertaking pursuant to Article 191 of the Code of Criminal Procedure. This petition was refused by the investigating judge (Untersuchungsrichter) on .. October and, on appeal (Beschwerde), by the Judges' Chamber (Ratskammer) of the Regional Court on .. November, 1961. The Chamber noted that, on .. October, the investigation had been extended to further offenses under the Explosives Act and held that, especially in view of this extension of the investigation, the risks of the Applicant's absconding and committing further similar offenses continued to obtain as legal reasons for his detention. The Applicant's further appeal from this decision was dismissed by the Court of Appeal (Oberlandesgericht) of Graz on .. December, 1961. Following a second petition for release by the Applicant, the Judges' Chamber found, on .. December, 1961, that there was no further danger of his committing further offenses of the same nature and, on the same day, the Applicant was released on parole and bail of 10,000 Austrian Schillings under Articles 191 and 192 of the Code of Criminal Procedure. Before that date, and also subsequently, the volume of the proceedings grew considerably as a result of the inclusion of several criminal proceedings pending before other courts against the Applicant and a great number of other persons for suspected planning and execution abroad of plots involving explosives.   II. The Applicant was not brought to trial in 1962 and, in February, 1963, he absconded to Germany in order to escape his arrest in another criminal case which was then pending before the Regional Court of Innsbruck. In that case, he was suspected of having given refuge to persons who moved explosives from Innsbruck to foreign countries as well as of having himself stored explosives in his home. The Applicant states that the criminal proceedings relating to these alleged offenses were later discontinued.   III. On .. March, 1963, the Judges' Chamber of the Regional Court of Graz declared forfeited the Applicant's bail in the proceedings mentioned under I above on the ground that he had left his domicile in Austria and remained abroad without the Court's permission. For the same reason, the investigating judge of the Court, on .. March, 1963, issued a new warrant of arrest and, on .. June, 1964, the Applicant was re-arrested at Klagenfurt. His appeal against detention was dismissed by the Judges' Chamber on .. July, 1964. The Chamber stated that, after his return to Austria, the Applicant had lived there under a false name and it confirmed the finding of the investigating judge that there was a danger that the Applicant might, if released, again flee the country.   The investigation against the Applicant was extended to further criminal offenses under the Explosives Act and the Arms Act (Waffengesetz) and later on also to an offence of incitement to disaffection (Aufwiegelung) under Article 300 of the Criminal Code. On .. February, 1965, the Applicant was informed of the indictment (Anklageschrift) lodged by the Public Prosecutor's Office (Staatsanwaltschaft) of Graz in which he and another 21 persons were charged with offenses under the Explosives Act. His objection (Einspruch) to the indictment was overruled by the Court of Appeal on .. April, 1965. A petition for release filed by the Applicant was refused by the investigating judge and, on appeal and further appeal, by the Judges' Chamber on .. March and by the Court of Appeal on .. April, 1965.   IV. On .. May, 1965, the Applicant's trial (Hauptverhandlung) opened before the Schöffengericht (a chamber composed of two judges and two jurymen) of the Regional Court of Graz. Counsel for the defence moved that the Schöffengericht should immediately declare itself incompetent pursuant to Article 261 of the Code of Criminal Procedure on the ground that the defendants were suspect of having joined in a conspiracy within the meaning of Article 7 of the National Security Act (Staatsschutzgesetz) and that consequently the case fell within the competence of the Court of Assizes (Geschworenengericht). The Schöffengericht dismissed this motion, holding that only after having heard the evidence could it determine whether the acts imputed to the defendants were of a political nature. At the same time the Court refused a new petition for release filed by the Applicant. After having heard all defendants and examined the evidence, the Schöffengericht, by its judgment of .. May, 1965, declared itself incompetent. The Court stated that it had come to the conclusion that the defendants had joined in a conspiracy which served the purpose not only of undertaking plots involving explosives but also of procuring, in a clandestine and unlawful manner, ammunition and other material for fighting and of keeping and distributing such material to the members of their group acting as armed bands abroad. Therefore, the defendants were under strong suspicion that, in addition to the crimes punishable under the Explosives Act which formed the subject of the indictment, they had committed an offence punishable under Article 10 of the National Security Act, which, however, established the Court of Assizes to be competent in accordance with Article 14 a of the Code of Criminal Procedure. The Schöffengericht deemed itself no longer competent to decide on a petition for release submitted by the Applicant after the above judgment had been pronounced.   V. On .. and .. June, 1965, further petitions for release were filed by the Applicant and the Regional Court of Graz decided on .. June, 1965, that he should be released on parole and on furnishing bail of 200,000 Austrian Schillings. He was accordingly released on .. June, 1965.   VI. The Applicant's trial before the Court of Assizes of Graz opened on .. September and lasted until .. October, 1965. The jurors unanimously answered all of the main questions and secondary questions (8) in the negative. On the basis of this verdict the Applicant was acquitted of certain counts of the charge on .. October, 1965, in accordance with Article 259, No. 3 of the Code of Criminal Procedure; this judgment became final. Regarding the other charges the verdict was suspended by a unanimous decision of the Schwurgerichtshof (the professional judges of the Court of Assizes) under Article 334, paragraph (1) of the Code of Criminal Procedure. According to this rule, the Schwurgerichtshof may, where it holds unanimously that the jurors passed an erroneous verdict on the main issue, suspend the verdict and submit the case to the Supreme Court (Oberster Gerichtshof) for reference to another Court of Assizes. In respect of the counts on which the verdict was suspended, the Supreme Court, on .. March, 1966, referred the case to the Court of Assizes of Linz for a new trial pursuant to Article 334, paragraph (2), of the Code of Criminal Procedure.   With regard to the duration of the above criminal proceedings against him before the Austrian Courts and the length of his detention pending trial, the Applicant now alleges violations of Article 5, paragraph (3) and Article 6, paragraph (1) of the Convention. He submits that a substantial delay in the proceedings was caused by the Office of the Public Prosecutor which brought his case before the Schöffengericht although that Court had no jurisdiction in the matter.   Proceedings before the Commission   I. On 14th December, 1966, the Commission decided to give notice, in accordance with Rule 45, paragraph (3) (b) of its Rules of Procedure, of the Application to the Respondent Government and to invite it to submit its observations in writing on the admissibility of the Application.   II. In its observations of 17th March, 1967, the Austrian Government submitted that the Applicant's complaints under Articles 5 and 6 of the Convention were inadmissible, in part, under Articles 26 and 27, paragraph (3) for non-exhaustion of domestic remedies and, in any case, as being manifestly ill-founded within the meaning of Article 27, paragraph (2).   1. As to the alleged violation of Article 5, paragraph (3), the Government pointed out that, during his first detention from .. August until .. December, 1961, the Applicant did not lodge an appeal against detention until .. October. During his second detention from .. June, 1964, until .. June, 1965, he failed to introduce a further appeal against the decision given by the Judges' Chamber on .. July, 1964, although such a remedy lay under Article 114, paragraph (1) of the Code of Criminal Procedure.   2. With respect to the complaint under Article 5, paragraph (3), the Government further submitted that the Applicant's case was very voluminous and complicated. The great number of accused and of criminal acts made the investigation very difficult. The case-file comprised ten volumes containing altogether 5478 pages. In the Government's opinion, further reasons for the length of the Applicant's detention were his fleeing to another country, the host of his appeals against detention and other petitions, and the fact that, after his first release, he continued to commit criminal acts. In these circumstances, the Applicant had been brought to trial "within a reasonable time" in accordance with Article 5, paragraph (3), and it followed that this part of the Application was manifestly ill-founded within the meaning of Article 27, paragraph (2) of the Convention.   3. In respect of the alleged violation of Article 6, paragraph (1) of the Convention, the Government submitted that a person could not be regarded as being under a "criminal charge" ("accusation" in the French text, "Anklage" in the German translation) within the meaning of that provision until he had been formally arraigned. Reference was made in this connection to the Commission's decisions on the admissibility of Application No. 1216/61 (Collection of Decisions, Volume 11, pages 1 [5 - 6]) and Application No. 1545/62 (Yearbook of the European Convention on Human Rights, Volume 5, pages 270 [276]) and to the usage in English, French and Austrian criminal procedure. In the opinion of the Government, it was therefore only when a formal indictment (Anklage) within the meaning of Chapter XVI of the Austrian Code of Criminal Procedure had been brought against him and become legally valid (rechtskräftig), that a person in Austria had the right to a judicial decision within a reasonable time under Article 6, paragraph (1) of the Convention. It followed that, in the present case, the starting point to be taken into consideration was .. April, 1965, when the Applicant's objection lodged against his indictment was overruled by the Court of Appeal of Graz. In the meanwhile, the charge against him had twice been tried in judicial proceedings and decided upon by a judgment. His third trial was expected to take place before the Court of Assizes of Linz in May 1967.   With regard to the Applicant's complaint that a considerable delay in the criminal proceedings against him was caused by the Public Prosecutor's Office in that it brought his case before the Schöffengericht although such court was not competent for the subject matter, the Government made the following observations:   The Explosives Act had originally been deemed a purely political Act and Article 13 of the Act established in principle the competence of the Court of Assizes in regard to offenses punishable under Articles 4, 5, 6 and 8. However, this rule, which had already been invalidated by the Code of Criminal Procedure Amendment Act of 1920, was finally repealed by the Criminal Code Amendment Act of 1934. Thereafter, only the acts enumerated in Article VI, No. 1 of the Introductory Act to the Code of Criminal Procedure, later incorporated in Article 14 (a) paragraph (1) of this Code, constituted clearly political offenses coming within the exclusive competence of courts of assizes according to Article 91, paragraph (2) of the Federal Constitution (Bundes-Verfassungsgesetz). Criminal acts punishable under the Explosives Act were not mentioned in this list. It followed that they were not in themselves political offenses although, in the light of the underlying motive or purpose, they might constitute such offenses. In a decision of 1963, the Supreme Court accordingly ruled that in the present legal situation the Schöffengerichte were competent to judge alleged violations of the Explosives Act. In the Government's opinion, the Applicant had not committed a clearly political offense. There were no concrete clues pointing to a violation of Article 10 of the National Security Act and this offence was therefore not included in the indictment. When the Schöffengericht of Graz, by its decision of .. May, 1965 dismissed the motion of counsel for the defence that it should at once declare itself not competent, the Court subscribed to the legal view set out above. The decision of non-competence which it gave on .. May, 1965, left the general legal situation unchanged. The Government concluded that, in the above circumstances, a "reasonable time" within the meaning of Article 6, paragraph (1) of the Convention had not been exceeded in the Applicant's case. It followed that the remainder of the Application was also manifestly ill-founded.   III. In his reply of .. April, 1967, the Applicant maintained his complaints under Articles 5 and 6 of the Convention.   1. He objected to the Government's observation that, in respect of the alleged violation of Article 5, paragraph (3), he had failed to exhaust the remedies available to him under Austrian law. He stated that an appeal against detention lodged immediately after his first or second arrest would have been unsuccessful as even his petitions for release introduced at later stages of his first and his second detention were rejected by the competent courts. The Applicant also submitted that he failed to lodge premature appeals because he did not want to protract the investigation unnecessarily. He considered that the Respondent Government could not, on the one hand, reproach him for not having taken his complaint concerning detention before every instance when it alleged, on the other hand, that the length of this detention was due to the large number of appeals filed by him.   2. In the Applicant's opinion, neither his complaint under Article 5, paragraph (3), nor that under Article 6, paragraph (1), was manifestly ill-founded as suggested by the Government. In this respect, he stated that, after his second arrest on .. June, 1964, he was informed by the investigating judge that the investigation was closed and that the file had been finally sent to the Public Prosecutor's Office. It was clear from Article 112 of the Austrian Code of Criminal Procedure that either the Applicant should have been served with the indictment within 14 days or, in the absence of any grounds for further proceedings, the case should have been closed. In fact, he did not receive the indictment until .. February, 1965, that is to say three months after the time-limit provided for by law, and then only after he had started a total hunger strike which aroused considerable public interest. Furthermore, he was indicted before the wrong court and this protracted the whole case further. All the circumstances described by the Schöffengericht in its ruling of lack ofjurisdiction were known to the Public Prosecutor's Office from the beginning but were deliberately ignored. Since the verdict of the Court of Assizes was set aside in October 1965 a further 18 months had elapsed, so that even in this last stage there had been unnecessary delay. The new trial was now to be held between .. and .. May, 1967, before the Court of Assizes at Linz. With regard to the period to be taken into consideration under Article 6, paragraph (1) of the Convention, the Applicant pointed out that proceedings against him began with his arrest on .. August, 1961. Thus they had already run for nearly six years, during which time, in addition to his periodical detention pending trial, he had been subjected to all kinds of other restrictions with regard both to the exercise of his profession and to his freedom. Any attempt to deduce from the wording of Article 6, paragraph (1) that, in criminal proceedings, it applied only to persons who were already in possession of the indictment was either to misunderstand the meaning of the Convention or to twist its meaning to the exact opposite. For such a limitation of this provision of "accused persons" would make it possible for any State to subject a citizen to criminal investigation, with all its disabilities, for an unlimited period; it would simply be necessary for the Public Prosecutor's Office to delay delivery of the indictment for as long as it chose as had happened in the present case. In this connection the Applicant pointed out that throughout 1962, to take one example, there was no significant action by either the investigating judge or the Public Prosecutor's Office and, although the investigation was for all practical purposes complete at the beginning of that year, no indictment was preferred. This entailed the greatest inconveniences for all the defendants concerned and it could not be the intention of the Convention not to offer any protection against such conduct. The Applicant concluded that the length of his detention and of the proceedings against him originated not in any complexity of the facts but in the political intentions of the prosecution which thought to serve the higher interests of the State. THE LAW   Whereas, with regard to the Applicant's complaint concerning the length of his detention pending trial, Article 5, paragraph (3) (Art. 5-3) of the Convention states that anyone arrested or detained in accordance with paragraph (1) (c) of that Article (Art. 5-1-c) "shall be entitled to trial within a reasonable time or to release pending trial from .. August until .. December, 1961, and again from .. June, 1964 until .. June, 1965;   Whereas the Commission has considered the question whether, for the purpose of Article 5, paragraph (3) (Art. 5-3), the above two periods of four months and one year respectively should be judged separately or as a whole;   Whereas, further, with regard to the second period of detention, the Commission has noted that it continued during the Applicant's trial before the Schöffengericht of Graz and subsequently for one month pending his trial before the Court of Assizes of Graz; whereas, in this connection, the further question arises whether the period to be considered under Article 5, paragraph (3) (Art. 5-3), of the Convention ends at the date when the trial opens or continues until judgment is passed by a court of first instance, or extends beyond that date until the day of a final decision on appeal;   Whereas, however, the Commission does not feel called upon to decide these questions in the present case as it finds that, even if the two periods of the Applicant's detention, including the time between the date of the opening of his trial before the Schöffengericht and the date of his final release, were considered as a whole, there is in the particular circumstances of the case no appearance of a violation of Article 5, paragraph (3) (Art. 5-3) of the Convention;   Whereas, in this respect, the Commission recalls that, according to its constant jurisprudence, the question whether a period of detention pending trial is "reasonable" or not cannot be decided in abstracto but must be determined in the light of the particular circumstances of each case (see Application No. 2077/63, Yearbook of the European Convention on Human Rights, Volume 7, pages 268 [276, 278], and Application No. 2516/65, Collection of Decisions of the Commission, Volume 20, pages 28 [35]);   Whereas, in the present case, the Commission has taken into account the facts that the investigation was complicated because of the great number of persons accused and of alleged offenses; that, after his first release in 1961 on parole and bail, the Applicant fled the country and, after later returning to Austria, lived there under a false name; and that it does not appear that during his detention the criminal proceedings against him were substantially prolonged through the fault of the competent authorities;   Whereas, in view of all these circumstances, an examination of the case does not disclose any appearance of a violation of Article 5, paragraph (3) (Art. 5-3) of the Convention; whereas it follows that this part of the Application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2) of the Convention;   Whereas, with regard to the Applicant's complaint concerning the duration of the criminal proceedings against him, Article 6, paragraph (1) (Art. 6-1) of the Convention states that, in the determination of any criminal charge against him, everyone is entitled to a "hearing within a reasonable time";   Whereas, in the opinion of the Respondent Government, the period of "reasonable time" referred to in this provision does not begin until the person concerned has been formally charged; and whereas, in support of this view, the Government refers to the Commission's decisions on the admissibility of Applications Nos. 1216/61 and 1545/62;   Whereas the Applicant objects to this interpretation of Article 6, paragraph (1) (Art. 6-1) of the Convention; whereas he considers that such a limitation of the scope of this provision would make it possible for a Contracting State to subject a citizen to criminal investigation, with all its disabilities, for an unlimited period, as it would simply be necessary for the Public Prosecutor to delay delivery of the indictment as long as he chose;   Whereas it is true that, in its decision on the admissibility of Application No. 1216/61 (loc. cit. page 6), the Commission held that a person against whom a criminal charge (öffentliche Klage) within the meaning of the German Code of Criminal Procedure (Strafprozessordnung) has not yet been brought is not a person "charged with a criminal offense" within the meaning of Article 6, paragraph (3) (Art. 6-3) of the Convention; and whereas, in its decision on the admissibility of Application No. 1545/62 (loc. cit. page 276), the Commission stated generally that the words "within a reasonable time" in Article 6, paragraph (1) (Art. 6-1) "refer to the period that elapses between the charge and sentence";   Whereas, however, in the case of Neumeister against Austria (Application No. 1936/63) which is now pending before the European Court of Human Rights, the Commission has again considered the question at what stage the period of "reasonable time" referred to in Article 6, paragraph (1) (Art. 6-1) begins; whereas, in that case, it has arrived at the general conclusion that the relevant stage is that "at which the situation of the person concerned has been substantially affected as a result of a suspicion against him"; and whereas, pending a decision of the Court on this question, the Commission maintains the opinion which it adopted in the Neumeister case;   Whereas it follows that, in the present case, the starting point taken into account by the Commission for the purpose of deciding whether a "reasonable time" within the meaning of Article 6, paragraph (1) (Art. 6-1) has been exceeded is the date of the Applicant's first arrest in the criminal proceedings against him, namely .. August, 1961;     Whereas the Commission has also considered the question whether the requirement under Article 6, paragraph (1) (Art. 6-1) as to "reasonable time" is satisfied where a trial is opened and the accused is heard by a court of first instance within a reasonable time; alternatively, whether it is necessary that during this time a judgment is given by the court; or whether the period referred to in Article 6, paragraph (1) (Art. 6-1) also includes any proceedings on appeal; whereas the Commission does not feel called upon to decide this question in the present case;   Whereas it finds that, even if the period of nearly six years which elapsed between the Applicant's first arrest on .. August, 1961, and the date of the Commission's present decision (30th May, 1967) were fully taken into account, there is, in the particular circumstances of the case, no appearance of a violation of Article 6, paragraph (1) (Art. 6-1) of the Convention;   Whereas, in this respect, the Commission refers to the grounds set out above in its finding regarding Article 5, paragraph (3) (Art. 5-3);   Whereas, in particular, the criminal proceedings against the Applicant were substantially delayed by the fact that, in February 1963, he absconded to Germany and that, after his return to Austria, he lived there under a false name until he was re-arrested on .. June, 1964; whereas, in the meanwhile, the charges against him have been tried in judicial proceedings and decided upon by a judgment; and whereas he has been finally acquitted of some of the charges;   Whereas it follows that the remainder of the Application is also manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2) of the Convention.   Now therefore the Commission declares this Application inadmissible.