CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 février 1969

.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 applicant may be summarised as follows:   The applicant is an Austrian citizen born in 1926 and at present resident in Vienna. He is represented by his lawyer Dr. S.   I. On .. February, 1948, the applicant's uncle, aunt and infant nephew were found dead in their bedroom. A revolver was found on the floor beside the body of Maria F., the applicant's aunt, and a scribbled message on her bedside table. Further inquiries showed that she was, and has reason to be, jealous on account of her husband's relations with other women. It was accordingly assumed that she had shot her husband and child and then committed suicide.   On .. June, 1949, the applicant, together with his mother and another uncle, were imprisoned on suspicion of having stolen certain supplies which has been deposited in their barn by a Vienna firm during the war. A principal informant in the enquiries leading to this arrest was J., the brother of the applicant's aunt Maria F.   On .. July, 1949, 17 months after the crime, J. reported to the police that when washing the body of his sister Maria he had found a bullet in her hair. A letter was then drawn up in the police station by officials who were investigating the other charge against the applicant, signed by J. and sent to the public prosecutor's office in Korneuburg. This report, which suggested that the applicant and his mother were responsible for the murder, let to investigations being opened against the applicant.   The impartiality and reliability of J., who later gave evidence against the applicant at his trial, were strongly criticised by an investigation commission (F. Commission) which was subsequently set by the Ministry of Interior to investigate the case. Apart from his allegation as to having found the bullet, J. made allegations, which were believed by the trial court, suggesting that the applicant had procured the message found on Maria F.'s bedtable in the course of a party game 1 1/2 years previously. It appears that these allegations were first made after the investigating police had obtained four expert opinions to the effect that the message was in fact in the handwriting of Maria F. and had not been copied by the applicant as he had alleged in a confession which he later withdrew.   On .. November, 1949, the applicant was subjected to an examination by police officials who are described in the report of the F. Commission as having been young and inexperienced. The examination began at 2 p.m. on .. November and continued until 2 a.m. on the following day, without a break. After having indicated that he was exhausted and asked for a rest which was refused, the applicant made a confession. This confession was inaccurate in describing the details of the crime and was withdrawn by the applicant three weeks later. The applicant stated at the time and has at all times maintained that his motive in making this confession was to clear his mother who was then under suspicion of a capital offence. There is conflicting evidence as to whether his fears in this respect were provoked or exaggerated by pressure from the examining officers. On being taken back to his cell the applicant attempted to commit suicide by cutting his wrists. The next day he was taken before the examining judge before whom he repeated his confession. On .. November the record of his examination before the police was prepared and signed by the applicant. This record follows closely that made by the examining judge on .. November but incorporates some corrections, in particular with regard to the position in which the child was shot.   On .. December, 1949, the applicant revoked his confession and has since then at all times maintained his innocence.   On .. October, 1950, the applicant was convicted of murder by the Regional Court (Kreisgericht) of Korneuburg and sentenced to life imprisonment. His plea of nullity (Nichtigkeitsbeschwerde) from this decision was dismissed by the Supreme Court (Oberster Gerichtshof) on .. March, 1951.   II. On .. March, 1953, the applicant applied to the Ministry of Justice for a retrial. On .. June, 1956, this application was forwarded to the Attorney-General who subsequently stated that it contained nothing requiring action by his department. The application was not forwarded to the court. In 1956 a lawyer, who in the course of other proceedings had to deal with the facts of the case, addressed two memorials to the Attorney-General indicating evidence and arguments showing that the applicant was innocent.   On 30th October, 1959, the applicant put his case before the Commission. His application (No. 624/59) was rejected on 3rd June, 1960, on the ground that, with the exception of the allegation that the Central Murder Commission had refused to make a fresh investigation of his case, all the facts alleged related to a period before 3rd September, 1958, the date of the entry into force of the Convention with respect to Austria. Moreover, the refusal of a fresh investigation did not violate any of the rights and freedoms guaranteed by the Convention.   On 23rd December, 1960, the applicant, now represented by Dr. S., made a new application for retrial. As a result of his application new investigations were made and, in particular, a five-man Police Commission was appointed by the Ministry of Interior under the chairmanship of Dr. F. After extensive investigations, this Commission submitted its report on .. November, 1964, which is critical of the manner in which the crime was investigated, the reliability of much of the evidence presented and accepted by the court and the conclusions arrived at, in particular, as to the guilt of the applicant.   After two visits to the locus in 1963, at neither of which the applicant was allowed to be present though his lawyer was present on the second occasion, the court obtained a number of expert opinions in 1964 and 1965. The applicant complains that the written questions addressed by his lawyer to the expert were vested by the prosecution. Finally, on .. May, 1966, after what the applicant considers much inexcusable delay, the Regional Court at Korneuburg set aside the applicant's conviction on the ground that there was new evidence available on three points:   -   as to the time of death, an expert medical opinion had established that with regard to all three victims death had in all probability occurred before midnight, although the possibility of their having died later was not entirely excluded. This evidence prima facie excluded the applicant as a suspect since he had an undisputed alibi until 12.30 a.m. The applicant's lawyer further points out that this expert report was based on information furnished by the prosecution which suggested that the victim had eaten later than the approximate times arrived at by the court hearing the application for retrial;   -   contrary to what had been assumed at the trial, it was now established by the expert evidence that not only Maria F. but also Franz F. had received shots from a very short distance (Nahschüsse). This evidence, taken with the other available evidence, made it difficult to explain how the victims could have been shot by a third person and made the theory that Maria F. had shot her husband and child before shooting herself more plausible. The court also seems to have accepted as correct certain other deductions by the experts as to the direction of the shots but did not make this an express ground for granting a retrial;   -   contrary to what was presumed at the trial, the paper on which the message found on Maria F.'s bedtable was written was not the same as certain other paper to which it was known that the applicant had easy access.   The prosecution appealed against this decision but it was confirmed by he Court of Appeal (Oberlandesgericht) in Vienna on .. July, 1966.   The applicant was there upon transferred to detention on remand and the prosecution commenced investigations with a view to retrial. On .. October, 1966, the prosecution applied for the proceedings against the applicant to be terminated and on .. October, 1966, the applicant was finally released, having been imprisoned for a total period of 17 years, 4 months and 10 days.   He complains that the period of detention on remand was unduly prolonged since it was taken up entirely with the procuring of an expert opinion which, as should have been foreseen, was entirely inconclusive, other investigations which were directed not to establishing the guilt or innocence of the accused but merely to making a case against the applicant's claim for compensation and, finally, the delay caused by the absence on holiday of the prosecutor and then of the court.   III. On .. October, 1966, the Regional Court of Korneuburg rejected the applicant's claim for compensation during the two periods of detention on remand from .. June, 1949 to .. March, 1951, and from .. July, 1966 to .. October, 1966, and also the applicant's claim for compensation on account of his conviction and sentence. The court considered that the detention and imprisonment was initially justified by the suspicion of theft and subsequently by suspicion of murder. Taking a somewhat different view of the evidence from that assumed in the proceedings on retrial, the court decided that the applicant had not succeeded in invalidating (entkräften) the suspicion which lay upon him because:   -   although the medical opinions had established the probability that death had occurred before midnight, the possibility of a later time had not been entirely excluded;   -   although the expert opinions had established certain matters which tended to increase the probability that the crime had been committed by Maria F., this was not sufficient to invalidate the suspicion resting on the applicant. Moreover, the court found that he had largely contributed to the suspicion against him and his conviction by his confession and this in itself was sufficient ground for refusing him compensation.   The applicant's appeal (Beschwerde) against this decision was rejected by the Court of Appeal on .. December, 1966. In doing so the Court made it clear that where there was a difference it followed the findings of the trial court as being inherently more trustworthy than those of the subsequent F. Commission, and the subsequent expert opinions, except on specific points on which the application for retrial had been granted. Moreover it considered that the conclusion by the court which granted the retrial application, that Maria F. had her last meal between 7 p.m. and 7.30 p.m., must also be treated as invalid since only a trial court was qualified to make such a finding. The court further drew attention to a number of errors committed by the applicant and stated finally that one could not speak of a possible error of justice so long as no material was available on which to base investigations against third persons who could have committed the crime independently of the applicant and without his knowledge (von einem Justizirrtum [kann] so lange nicht gesprochen werden ..., als keine Anhaltspunkte für den Verdacht und die Ausforschung dritter Personen vorliegen, die als unabhängig von dem Willen des Beschwerdeführers und ohne sein Wissen handelnde Täter in Frage kommen).   IV. The applicant alleges violation of Articles 4, 5 and 6 of the Convention.   Proceedings before the Commission   On 30th May, 1968, the application was examined by a group of three members of the Commission who unanimously reported that the application appeared to be admissible. The application was consequently communicated to the respondent Government for its observations in writing on the admissibility of the application, in accordance with Rule 45, paragraph 2, of the Commission's Rules of Procedure.   The Government submitted its observations on 12th October, 1968. The applicant's observations in reply were received on 21st November, 1968.   Submissions of the parties   The submissions made by the parties with regard to the articles invoked by the applicant may be summarised as follows:   As to Article 4 of the Convention   1. Question of exhaustion of domestic remedies (Article 26 of the Convention).   The respondent Government submits that the applicant has not exhausted the domestic remedies, as he failed to bring an action for damages against the officials concerned.   The applicant submits in reply that a party bringing such an action must allege some fault on the part of the officials concerned. The applicant, however, was not alleging any such fault.   2. Alleged violation of Article 4   The applicant refers to paragraph (2) of Article 4 and complains of the work which he was forced to perform during the period he was detained as a convicted prisoner.   The respondent Government submits that:   -   the applicant's detention was lawful, having been imposed by a competent court in accordance with a procedure prescribed by law;   -   the work required to be done was work imposed in the ordinary course of detention. The applicant was only required to do such work as is normally required from convicted persons;   -   the mere fact that the remuneration granted to such prisoners is low does not, of itself, constitute a violation of this Article (Application No. 2413/65 - Collection of Decisions, Vol. 23, page 1).   The applicant submits in reply that:   -   his detention was not lawful his conviction having been retrospectively annulled in accordance with a procedure prescribed by law with the result that his status was in law the same as that of a person who had been acquitted;   -   in any case, the legality of his detention is irrelevant since the work which he was required to do cannot be correctly described as work normally required from detained persons. In the first place, since in Austria some convicted persons are not required to work at all (i.e. persons serving terms of less than one year in court prisons) and others, i.e. long terms prisoners, are required to work, it is not true that in Austria convicted persons as a class are "normally" required to work;   the work imposed, i.e. employment in the book-binding section, cannot be considered as normal because:   -   it was not suitable to the applicant's level of education as a college student;   -   it involved working in a position and under conditions which brought about an affection of the inter-vertebral joints (Spondylarthrose);   -   although the inadequacy of the remuneration may not in itself constitute a violation of the Convention, it is evidence that the work imposed was inequitable and unsuitable and carried out against the will of the person on whom it was imposed.   As to Article 5 of the Convention   1. Question of exhaustion of domestic remedies   The respondent Government submits that the applicant has not exhausted the domestic remedies since:   -   as regards his detention on remand pending the retrial proceedings, he failed to apply for release first to the Judges' Chamber (Ratskammer) of the Regional Court and then to the Court of Appeal;   -   as regards the entire period of his detention - pending trial, following conviction and pending retrial - he failed to bring an action for damages against the officials concerned.   The applicant submits in reply that:   -   as regards the possibility, during his detention pending retrial, of applying for release to the Judges' Chamber and the Court of Appeal, such application would not have been successful. It is not necessary to apply to a national court when the result would inevitably be the repetition of a decision already pronounced (see the case of Panevezys-Saldutiskis quoted in the Commission's decisions on Applications No. 514/59 - X. v. Austria - Yearbook of the European Convention on Human Rights, Vol. III, page 196 and No. 1936/63, ibidem Vol. III, page 224). In the circumstances the applicant cannot be blamed for not making a hopeless application, the only effect of which would have been to further prolong the preliminary investigation and thus his detention on remand;   -   as regards the possibility of bringing an action for damages against the officials concerned, a party bringing such an action must allege some fault on the part of the officials; the applicant, however, was not alleging any such fault. Until recently (see Oberster Gerichtshof [Supreme Court] Ev. B; Nr. 232/1967) Austrian jurisprudence has denied any liability for officials concerned in a case of illegal deprivation of freedom. Recently the Supreme Court has admitted that damages can be claimed in such cases where there has been fault on the part of the officials concerned. But the claim for damages for unlawful detention under Article 5, paragraph (5) of the Convention is independent of any fault on the part of the officials concerned,   it is a case of liability for bringing about a certain state of affairs (Erfolgshaftung). It is not to be expected that the applicant who has already taken unsuccessful proceedings at first instance and on appeal under the laws relating to compensation for detention should now bring an action for damages for breach of official duty in which he would have to prove fault on the part of the courts concerned.   2. Alleged violation of Article 5, paragraph (1) (a)   The applicant complains that his detention as a convicted person was not "lawful" within the meaning of Article 5, paragraph (1).   The respondent Government submits that:   -   the applicant's detention as a convicted person was lawful having been imposed by a competent court in accordance with a procedure prescribed by law;   -   subsequent evidence which raises doubts as to the guilt of a convicted person cannot affect the lawfulness of his imprisonment;   -   an order for retrial was not required to be based on the innocence of the person concerned nor did it imply that he was innocent;   -   the discontinuation of the prosecution did not prove that the applicant was innocent but merely that, twenty years after the event, it was no longer possible to submit sufficient evidence to secure conviction;   -   there are strong indications that the crime was committed by the applicant, e.g. the finding by the trial court that it was committed with his revolver.   The applicant submits in reply that:   -   the arguments advanced by the respondent Government raise the general question of whether detention is lawful which is imposed by a judgment which is later annulled. The answer must depend on the result of the subsequent proceedings. Either these proceedings lead to a second judgment imposing imprisonment, in which case the original detention is confirmed and justified, or they lead to an acquittal or - as in the present case - an abandonment of the prosecution. In this case the detention is not retrospectively justified. The detention of the applicant would only have been "lawful" if, on retrial, he had again been convicted and sentenced to imprisonment. This opinion is shared by the Federal Ministry of Justice which states in the Explanatory Observations to the recent draft bill relating to compensation for criminal detention and conviction (page 18): "Unjustified prosecution occurs if .... a person who has been convicted by a judgment which has become res judicata is acquitted in the course of a new trial; the same applies if the proceedings against him are discontinued. In these circumstances the detention or conviction - even though on the state of the evidence at the time it was pronounced such detention or conviction was in accordance with the law - was in fact pronounced against an innocent person";   -   in fact the applicant's innocence results clearly from the working of the order for retrial which rests on three important and mutually independent conclusions. Moreover the order states expressly (page 15): "X cannot have murdered the three above-mentioned persons in view of the fact that he had an unshakeable alibi until 12.30 a.m.;   -   although, as the respondent Government has stated, an order for retrial does not, generally speaking, presuppose the innocence of the convicted person or necessarily establish his innocence, in this particular case the applicant's innocence appears from the express wording of the order;   -   the applicant takes strong exception to the respondent Government's reference to the weapon with which the crime was committed. The applicant made repeated efforts to have the question of the alleged weapon clarified but the Austrian courts and authorities refused to make the necessary enquiries or to produce records relating to the issue of the weapon, which was apparently of a type issued to certain members of the civil services. They have similarly failed to produce records relating to its alleged requisition by an occupying power and subsequent disappearance.   3. Alleged violation of Article 5, paragraph (1) (c), and paragraph (3)   The applicant complains that his detention on remand pending the retrial proceedings violated Article 5, paragraph (1) (c) and paragraph (3).   The respondent Government submits:   -   as regards paragraph (1), of Article 5, the detention on remand does not become unlawful merely because, owing to the difficulty of obtaining evidence, the prosecution was discontinued. The suspicion still resting on the applicant was sufficient to justify this detention. This was the point of view of the court which had ordered the retrial on procedural grounds. The prosecution was discontinued solely on account of the difficulty of obtaining evidence and in particular because the weapon with which the crime was committed was no longer available.   -   as regards paragraph 3 of Article 5, that the length of the detention on remand was not unreasonable in view of the complexity of the case. The problems to be clarified made it necessary to obtain a further medico-legal expert opinion. As an illustration of the difficulties in the case it should be mentioned that in the course of the original preliminary investigation the applicant had made repeated confessions and demonstrated the commission of the crime of triple murder.   The applicant submits in reply that:   -   his detention pending retrial was unlawful because the prosecution knew from the beginning that it would be impossible to bring sufficient new evidence to convict the applicant. For the same reason, the detention was unreasonably long. As a result of the expert opinions given in the proceedings on the application for retrial (which had lasted five years) the facts of the case were already sufficiently clear;   -   the further investigations pursued by the prosecution during the period of detention pending retrial consisted of an examination of the policemen present when the applicant made his confession and the obtaining of a slightly extended medico-legal opinion from one of the experts. In neither case could the results which might reasonably be expected from these investigations have been of such a nature as to establish the applicant's guilt. It was therefore not reasonable that he should be kept in detention pending the conclusion of obviously irrelevant investigations;   -   the applicant takes exception to the reference by the respondent Government to his confession. As has been explained in the application this confession was obtained under unusual circumstances and withdrawn after a short time. It was not maintained at the trial and has never been repeated. As to the demonstration of the crime by the applicant it was shown by the expert opinions given during the retrial proceedings that the crime cannot have been committed in the manner demonstrated by the applicant.   4. Alleged violation of Article 5, paragraph (5)   The applicant complains that the respondent Government's refusal to compensate him for his unjustified detention violates Article 5 paragraph (5).   The respondent Government submits that paragraph (5) of Article 5 gives a right to compensation only where the detention was in contravention of paragraphs (1) to (4). It is irrelevant that the accused person is subsequently proved innocent if the detention was itself lawful (see Application No. 2412/65, Collection of Decisions, Vol. 23,   Attention! Manuscript page 44 missing!!   the legislation provides no governing principles according to which this discretion shall be exercised and the two criteria established by this legislation namely "weakening of suspicion" and "probability of innocence" are so framed as to leave too wide a discretion to the courts;   -   alternatively if the respondent Government is correct in maintaining that the applicant cannot rely on Article 5, paragraph (5), in spite of the fact that his innocence has been established, he can nevertheless rely on Article 13 of the Convention as he has no effective rational remedy.   As to Article 6 of the Convention   1. Retrial proceedings   The applicant complains that Article 6 was violated in the proceedings on his application for retrial.   The respondent Government submits that, according to the constant jurisprudence of the Commission, Article 6 does not apply to proceedings on an application for retrial. This jurisprudence is correct. It is clear from paragraph (1) of Article 6 that this Article applies only to proceedings which involve the determination of either civil rights and obligations or of a criminal charge. Proceedings on an application for retrial do not involve the determination of either civil rights and obligations or of a criminal charge.   The applicant refers in reply to the Commission's decision in Application No. 2136/64 (Yearbook, Vol. 7, pages 298-310) and, in particular, to the following passage (loc. cit. pages 304, 306):   "Whereas the Commission has frequently stated that a person who has been convicted by a Court decision amounting to res judicata is not a person 'charged with a criminal offence' within the meaning of Article 6 and thus not entitled to the rights guaranteed therein;   Whereas it has further held that the provisions of Article 6 are not applicable to a convicted person during subsequent revision proceedings initiated by him before a domestic Court, unless that Court is seized of any criminal charges against him, whether it be the initial charge or that which a Public Prosecutor might have newly formulated or repeated if the convicted person's application for revision had been granted."   The applicant states that he does not maintain his original complaints relating to the long duration of the proceedings on his application for retrial and to the alleged violation of Rules of Procedure during these proceedings. He considers, however, that, in the proceedings following the Regional Court's decision ordering a retrial, the Court was seized of a criminal charge against him with the consequence that Article 6 applied. He complains that Article 6, paragraphs (1) and (3), was violated in these proceedings.   2. Proceedings concerning the applicant's claim for compensation   The applicant complains that Article 6, paragraphs (1), (2) and (3), was violated in these proceedings.   The respondent Government submits that:   -   proceedings concerning compensation for detention do not amount to a trial on a criminal charge. Paragraphs (2) and (3) of Article 6 cannot therefore apply to such proceedings since the rules they enunciate relate exclusively to the rights of the accused in criminal proceedings. Persons other than an accused cannot claim any rights under paragraphs (2) and (3) of Article 6 (see Applications No. 808/60, Yearbook, Vol. V, page 108; No. 858/60, Yearbook, Vol. IV, page 225). In compensation proceedings the applicant is not an accused person but a person making a claim in public law:   Article 6, paragraphs (2) and (3), cannot therefore apply to such proceedings. An applicant cannot claim the benefit of these provisions in any proceedings which follow the delivery of judgment (Applications No. 3126/64, Yearbook, Vol. III, page 298; No. 1135/61, Yearbook, Vol. VI, page 194; No. 1237/61, Yearbook, Vol. V, page 96);   -   proceedings concerning compensation for detention do not involve the determination of a "criminal charge" nor that of "civil rights and obligations" in the sense of Article 6, paragraph (1). The right to receive compensation depends on the person in question being able to show that he is innocent and that socially and morally he deserves to receive such compensation. The right to receive compensation does not depend on the detention having been unlawful or caused by the fault of the officials concerned. Indeed, in most cases where compensation is awarded the detention was lawfully imposed. Thus the right to compensation is not governed by the principles of the civil law. Damages for detention are compensation for damage suffered as result of the acts of a public authority. The right to such compensation is not a civil law right but a right arising under public law.   The applicant submits in reply that:   -   the proceedings concerning compensation for detention relate to a "criminal charge" in the sense of Article 6. A criminal charge does not mean a formal charge but criminal proceedings concerning an act punishable under the criminal law. Under the present Austrian legislation on compensation for unjustified detention, the court which acquits the person previously convicted or terminates the proceedings against him shall decide immediately on the question of compensation for detention. This decision is thus the final act of the criminal proceedings";   -   in the proceedings concerning the claim for compensation, the law requires the "weakening of the suspicion" to be proved by the applicant. In the Court of Appeal proceedings of .. December, 1966, the burden of proof was, in fact, placed upon him. The order for retrial of May, 1966 had annulled the original judgment. The actual wording of this decision established the applicant's innocence beyond all doubt. But in the compensation proceedings it was suddenly stated that the suspicion against him "has not been weakened". The applicant was thus treated as being guilty although his guilt has not been proved according to law. The effects of this are not merely financial:   the applicant found himself once again treated as a murderer and this is not consonant with Article 6, paragraph (2);   -   the applicant's claim for compensation must be classified as a civil right within the meaning of Article 6, paragraph (1). The Commission decided in the Isop case (Application No. 808/60, Yearbook, Vol. V, page 108) that "the question whether a right or an obligation is of a civil nature within (the meaning of) Article 6, paragraph (1), of the Convention does not depend on the particular procedure prescribed by domestic law for its determination but solely on an appreciation of the claim itself and of the purpose of the complaint" (loc. cit. page 122). Article 5, paragraph (5), of the Convention established an obligation not pay compensation for unjustified detention. A claim for such compensation must be recognised as a civil right within the meaning of Article 6. In continental law this category extends to matters which are classified as public obligations. However, the question whether a claim for compensation is to be classed as a civil right under Article 6 does not depend on the fact that a private individual has suffered damage. The Austrian Supreme Court recognised that an unlawful detention arising out of the fault of an official organ gives rise to an action for damages against the official concerned. The purpose of the existence of civil rights is to protect the citizen against the superior power of the State;   -   in the compensation proceedings before the Regional Court in Korneuburg, the prosecution lodged voluminous written pleadings which were not made known to the defence until after the decision rejecting the applicant's claim had been taken on .. October, 1966. The prosecution were present in court and argued the case against the applicant. Neither the accused nor defence counsel were present at the hearing. The law makes no provision for written pleadings to be lodged by an applicant or his counsel. Defence counsel attempted in haste, and without proper preparation, to draw up submissions but it was impossible for him in doing so to take account of the prosecution pleadings which he had not received. The result was that the same three judges who in May had stated that the applicant was innocent now found that the suspicion against him had not been weakened. From the point of view of the merits this constitutes a reformatio in peius.   On appeal the prosecution again filed written pleadings and argued the case in court in the absence of the applicant and defence counsel. The prosecution counsel concerned in both instances had previously been concerned in the case against the applicant and at no time during the previous proceedings had they ever examined or mentioned a single point telling in favour of the applicant although under an obligation to do so under Article 3 of the Code of Criminal Procedure. In these circumstances the principle of "equality of arms" was clearly violated - see the cases of Ofner, Hopfinger, Pataki, Punshirn, Plischke and Neumeister and Applications No. 1135/61 (Yearbook, Vol. VI, pages 194, 202) and No. 1793/62 (ibidem pages 458, 460).   THE LAW   Whereas the applicant complains that his detention as a convicted person violated Article 5, paragraph (1) (a) (Art. 5-1-a), of the Convention, in that it was not "lawful" within the meaning of this provision, his conviction having been set aside in 1966; whereas Article 5, paragraph (1) (Art. 5-1), guarantees to everyone the right to liberty and security of person;   Whereas, however, under subparagraph (a) (Art. 5-1-a), a person may be deprived of his liberty, in accordance with a procedure prescribed by law, by "lawful detention ... after conviction by a competent court";   Whereas the Commission has examined the applicant's complaint with regard to his detention between 3rd September, 1958, being the date of the entry into force of the Convention with respect to Austria, and .. July, 1966, being the date on which the Regional Court's order for retrial acquired the force of res judicata; whereas the Commission finds that this decision, which set aside the applicant's conviction of 1950, did not retroactively affect the "lawfulness" of his detention within the meaning of Article 5, paragraph (1) (a) (Art. 5-1-a);   Whereas it follows that the applicant's complaint under Article 5, paragraph (1) (a) (Art. 5-1-a), is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas the applicant further complains that, during his detention as a convicted person, he was required to perform forced or compulsory labour, contrary to Article 4 (Art. 4) of the Convention; whereas he considers in particular that the conditions of Article 4, paragraph (3) (a) (Art. 4-3-a), were not fulfilled in his case, his conviction having been set aside in 1966;   Whereas the Commission has again examined this complaint with regard to the applicant's detention between 3rd September, 1958 and .. July, 1966; whereas it is true that Article 4, paragraph (2) (Art. 4-2), of the Convention prohibits forced or compulsory labour; whereas, however, it follows from paragraph (3) (a) (Art. 4-3-a), that, for the purpose of this Article, the term "forced or compulsory labour" shall not include "any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 (Art. 5)"; and whereas the Commission has already found that the court decision of 1966, which set aside the applicant's conviction of 1950, did not retroactively affect the lawfulness of his detention within the meaning of Article 5, paragraph (1) (a) (Art. 5-1-a);   Whereas it follows that the work performed by the applicant during his above detention was covered by Article 4, paragraph (3) (a) (Art. 4-3-a), read in conjunction with Article 5 (Art. 5);   Whereas, in this connection, the Commission refers to its decision on the admissibility of Applications Nos. 3114/67, 3172/67 and 3188/67 to 3206/67 (Collection of Decisions, Vol. 27, pages 97, 110-111);   Whereas it follows that the applicant's complaint under Article 4 (Art. 4) is also manifestly ill-founded;   Whereas the applicant further complains that his detention on remand pending the retrial proceedings violated Article 5, paragraph (1) (c) and paragraph (3) (Art. 5-1-c, 5-3), of the Convention;   Whereas he maintains in particular that during the period concerned, there existed no "reasonable suspicion" within the meaning of paragraph (1) (c) (Art. 5-1-c), that he had committed an offense;   Whereas, under Article 5, paragraph (1) (c) (Art. 5-1-c), a person may be deprived of his liberty, in accordance with a procedure prescribed by law, by "lawful ... detention ... effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence"; and whereas, according to paragraph (3) of Article 5 (Art. 5-3), everyone detained under applicant (1) (c) (Art. 5-1-c) shall be entitled "to trial within a reasonable time or to release pending trial";   Whereas, in a previous case, the Commission has considered, but not decided, the question whether the provisions of Article 5, paragraph (3) (Art. 5-3), which concern detention pending trial, apply also to detention pending retrial (see Application No. 1873/63, Collection of Decisions, Vol. 22, pages 17, 21); whereas, assuming in the present case that both paragraph (1) (c) and paragraph (3) of Article 5 (Art. 5-1-c, 5-3) may be invoked with respect to detention pending retrial, the Commission does not find that these provisions were violated; whereas, in this connection, it has had regard to the decisions of the domestic courts, insofar as they have been submitted, and also noted the uncontested statement by the respondent Government that, in the view of the Regional Court which ordered the retrial, the suspicion still resting on the applicant was sufficient to justify his continued detention; whereas the Commission further observes, in respect of the applicant's complaint under paragraph (3), of Article 5 (Art. 5-3), that his detention pending retrial did not last longer than three months and six days, namely, from .. July until .. October, 1966; whereas, in the circumstances, this period cannot be regarded as unreasonable; whereas it follows that the applicant's complaints under Article 5, paragraph (1) (c) and paragraph (3) (Art. 5-1-c, 5-3), are also manifestly ill-founded;   Whereas the applicant further complains that the respondent Government's refusal to compensate him for his unjustified detention violates Article 5, paragraph (5) (Art. 5-5), of the Convention;   Whereas, under this provision, the applicant would be entitled to compensation if he had been the victim of arrest or detention in contravention of paragraphs (1) to (4) of Article 5 (Art. 5-1, 5-2, 5-3, 5-4);   Whereas, however, the Commission has already found that his complaints under paragraph (1), subparagraphs (a) and (c), and paragraph (3) (Art. 5-1-a, 5-1-c, 5-3) do not disclose any appearance of a violation of the Convention; whereas it follows that his complaint under paragraph 5 (Art. 5-5) is also manifestly ill-founded;   Whereas the applicant further complains that Article 6 (Art. 6) of the Convention was violated in the proceedings on his application for retrial;   Whereas, however, in accordance with the Commission's constant jurisprudence, proceedings concerning applications for retrial fall outside the scope of Article 6 (Art. 6) of the Convention (see Applications No. 864/60, Collection of Decisions, Vol. 9, pages 17, 20-22, and No. 1237/61, Yearbook of the European Convention on Human Rights and Fundamental Freedoms, Vol. V, pages 100-102); whereas it follows that this complaint is incompatible with the provisions of the Convention within the meaning of Article 27, paragraph (2) (Art. 27-2);   Whereas the applicant further complains that Article 6, paragraphs (2) and (3) (Art. 6-2, 6-3), were violated in the proceedings concerning his claim for compensation; whereas these provisions apply only to persons "charged with a criminal offence"; and whereas the applicant's claim for compensation was considered by the Austrian Courts after his original conviction had been set aside and the subsequent investigation against him had been terminated; whereas, at that state, he was not a person charged with a criminal offence; whereas it follows that his above complaint is also incompatible with the provisions of the Convention;   Whereas, finally, the applicant complains that Article 6, paragraph (1) (Art. 6-1) of the Convention was violated in the proceedings on his application for compensation; whereas this provision governs the determination of criminal charges and of civil rights and obligations;   Whereas the Commission has already found that, during the above proceedings, the applicant was not under any criminal charge; whereas, however, the question of a "civil right" within the meaning of Article 6, paragraph (1) (Art. 6-1); whereas the Commission finds that an examination of the file in its present state does not give it the information required for deciding this question; whereas, therefore, it decides to invite the parties to appear before it, in accordance with Rule 46 of the Rules of Procedure, in order to make oral submissions on the admissibility of the applicant's above complaint; whereas such submissions should, in particular, deal with the question whether the proceedings concerned involved the determination of a "civil right"; whereas, consequently, the Commission decides to adjourn its examination of the remainder of the application;   Now therefore the Commission   1. Declares inadmissible:   - the applicant's complaints under Article 4 and 5 (Art. 4, 5) of the Convention concerning his detention as a convicted person and pending the retrial proceedings;   - the applicant's complaints under Article 6 (Art. 6) of the Convention concerning the proceedings on his application for retrial;   - the applicant's complaints under Article 6, paragraphs (2) and (3) (Art. 6-2, 6-3), of the Convention concerning the proceedings on his application for compensation;   Adjourns its examination of the remainder of the application.