CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 novembre 1969

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AUSTRIA   (Application n o 1602/62)                     JUDGMENT       STRASBOURG   10 November 1969   In the Stögmüller case, The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention") and with Rules 21 and 22 of the Rules of Court, as a Chamber composed of the following Judges:   Mr.   H. ROLIN , President , and   MM.   A. HOLMBÄCK     A. VERDROSS     G. BALLADORE PALLIERI     M. ZEKIA     J. CREMONA     S. BILGE , and also MM. M.-A. EISSEN , Registrar , and J.F. SMYTH , Deputy Registrar , Decides as follows: PROCEDURE 1. The Stögmüller case was referred to the Court by the European Commission of Human Rights (hereinafter called "the Commission") and by the Government of the Republic of Austria (hereinafter called "the Government"). The case originated in an Application against the Republic of Austria submitted to the Commission on 1 August 1962 under Article 25 (art. 25) of the Convention by an Austrian national, Mr. Ernst Stögmüller. The Commission’s request, to which was attached the Report provided for in Article 31 (art. 31) of the Convention, was dated 29 May 1967 and the Application of the Government 7 June 1967. Both were lodged with the Registry of the Court within the period of three months laid down in Articles 32 (1) and 47 (art. 32-1, art. 47), the former on 30 May and the latter on 12 June 1967. These documents referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the Republic of Austria recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). 2. By Order made on 6 June 1967 under Rule 21 (6) of the Rules of Court, the President of the Court referred the Stögmüller case to the Chamber set up to hear the Neumeister case. The Chamber was composed of seven titular judges, including Mr. Alfred Verdross, the elected Judge of Austrian nationality, sitting ex officio by virtue of Article 43 (art. 43) of the Convention, and two substitute judges. As from 31 January 1969, the first substitute judge was called upon to replace one of the judges who was unable to continue to sit. 3. The President of the Chamber consulted, on 23 June 1967, the Agent of the Government and the Delegates of the Commission regarding the procedure to be followed (Rule 35 (1)). The same day he decided that the Agent should submit a memorial by 24 November 1967, on receipt of which it would be open to the Commission’s Delegates to submit a memorial not later than 24 February 1968. On 11 November 1967 the President of the Chamber extended the time allowed to the Government until 8 December 1967. The Government’s memorial, dated 4 December 1967, was received by the Registry on 6 December. By letter dated 18 January 1968 the Delegates of the Commission informed the President of the Chamber that they did not consider it necessary to reply to the memorial in writing but reserved the right to express themselves orally before the Court on certain particular aspects of the case. 4. On 5 February, 1 June, 8 and 22 July 1968, the President of the Chamber instructed the Registrar to invite the Commission or the Government, as appropriate, to produce various documents. These documents were filed on 8 February, 25 July, 24 September and 16 October 1968 and on 14 January 1969. 5. On 25 September 1968, the Court held a brief meeting in Strasbourg to prepare the oral part of the procedure. 6. By Order of 17 October 1968 the President fixed 10 February 1969 as the opening date for the oral hearings, having previously ascertained, through the Registrar, the views of the Agent of the Government and the Delegates of the Commission. 7. When informing the Agent and the Delegates of this decision the Registrar forwarded to them a list of questions on which the Court wished to receive further information or explanations at the oral hearings. 8. On 10 February 1969, the Court gave effect to a request of the Government to authorise the Agent, Counsel and Advisers of the Government to use the German language at the oral hearings: the Government undertook in particular to ensure the interpretation into French or English of their pleadings and statements (Rule 27 (2) of the Rules of Court). 9. The public hearings were held at the Human Rights Building at Strasbourg on 10 and 11 February 1969. There appeared before the Court: - for the Commission:   Mr. C.T. EUSTATHIADES ,   Principal Delegate , and   Mr. F. ERMACORA and Mr. J.E.S. FAWCETT ,        Delegates ; - for the Government:   Mr. E. NETTEL , Legationsrat at       the Federal Ministry of Foreign Affairs,   Agent , assisted by   Mr. W. PAHR ,   Head of the International Division in   the Constitutional Department of the Federal Chancellery, and   Mr. R. LINKE , Ministerialrat in the       Federal Ministry of Justice,   Counsel . The Court heard the statements and conclusions of these representatives. On 10 February 1969, the Government replied to the questions mentioned above at para. 7; the Commission communicated to the Court a document dated 23 December 1967 containing the Applicant’s observations on the Government’s memorial. On 11 February 1969, the Court put two questions to the persons appearing before it, and these were answered the same day. The Government also produced a document requested by the Court. The hearings were closed on 11 February 1969 at 5.15 p.m. 10. On 15 February 1969, the Court instructed the Registrar to obtain from the Agent of the Government certain additional information and documents, which were provided on 28 April. 11. After deliberating in private, the Court gave the present judgment. THE FACTS 1. The object of the Commission’s request and of the Government’s Application is to have the Stögmüller case referred to the Court so that the latter may decide whether the facts of the case reveal any violation by the Republic of Austria of its obligations under Article 5, paragraph (3) (art. 5-3), of the Convention. 2. The facts of the case as stated in the Commission’s Report, the Government’s memorial, the other documentary evidence produced and the oral statements by the representatives of the Commission and of the Government may be summarised s follows: 3. Mr. Ernst Stögmüller, an Austrian citizen, was born in Vienna on 19 June 1934. In 1955, Stögmüller was employed as an inspector for the "Heimat" Insurance Company in Vienna. While thus engaged, he began, both on his own account and for the company, to negotiate loans to the company’s clients and he finally became a full-time independent financial agent. On 10 January 1958, he founded with two other persons, Karl Hammerling and Franz Beyer, the private limited company of Stögmüller and Co. This company, whose registered office was in Linz, had an initial capital of 100,000 schillings. Its activities consisted of transactions relating to real property, including negotiating and advancing loans secured on real property or otherwise, the management of property for reward, the negotiation of settlements in and out of court, as well as an estate agency and commission business. The company also carried on the business of wholesale and retail trading goods of all kinds, including in particular import and export. All three members were directors. The company’s business could be transacted by any two of them, but in practice Stögmüller, who owned 80 per cent of the capital stock, managed the business alone. For the transaction of contracts for loans, Stögmüller advertised in the newspapers and sent circulars to solicitors and notaries. In his advertisements, he promised loans on particularly favourable terms which, however, he did not as a general rule observe. Moreover, he had one of his assistants follow the list of court notices in order to ascertain the identity of property-owners threatened with foreclosure, to whom he then offered credit. Although Article 2 of the Regulation on Usury (Verordnung der Bundesregierung vom 11.3.1933 gegen die Ausbeutung Kreditsuchender) only allows in such cases a rate of commission equal to or less than 2 per cent, Stögmüller usually obtained commission from 6 per cent to 7 per cent and sometimes even at 15 per cent. Furthermore, only one of the three members of the company, namely Karl Hammerling, held the business licence required by the law in these matters. 4. In connection with a civil action brought by the "Heimat" Insurance Co. before the District Court (Bezirksgericht) of Ferlach, the judge felt obliged, in view of the disclosure of certain of these business practices of the Applicant, to bring the facts of the case to the attention of the Public Prosecution. The consequent investigations resulted in the Public Prosecution at Klagenfurt charging the Applicant with aggravated fraud on five counts under Articles 197, 200, 201 (d), 203 and 199 of the Criminal Code. On 9 July 1959, these prosecutions were transferred, at Stögmüller’s request, to the Regional Criminal Court (Landesgericht für Strafsachen) of Vienna which acquitted him on 15 June 1960 (2b Vr 5328/59). In its decision of 31 January 1961 on a plea of nullity (Nichtigkeitsbeschwerde) lodged by the Public Prosecution, the Supreme Court (Oberster Gerichtshof) upheld the Regional Court’s judgment on two of the counts and referred the case back to the court for retrial on the other three. On 28 May 1963, the court sentenced the Applicant to five months’ imprisonment for perjury committed before the District Court of Vienna on 12 December 1957 in connection with a charge of aggravated fraud (Articles 197 and 199 sub-paragraph (a) of the Criminal Code). Stögmüller was acquitted on the other charges. By decision of 5 March 1964, the Supreme Court reduced that sentence to four months, as a result of an appeal entered by Stögmüller. However, the latter’s Application is not directed against those proceedings. 5. Suspected of having committed offences against the Usury Act (Wuchergesetz), Stögmüller was arrested on 3 March 1958 pursuant to a decision of the Linz District Court. On the following day, that court remanded him in custody (Verwahrungshaft) under Article 175, paragraph 1, sub-paragraphs 2 (danger of absconding) and 3 (danger of suppression of evidence - Verdunkelungsgefahr) of the Code of Criminal Procedure. When he was brought before the District Court at Linz on 5 March 1958, the Applicant stated that he had been informed of that decision against which he did not propose to appeal (beschwerdelos), but asked that the file be transmitted to the Investigating Judge at Wels. This transmission took place and, on 10 March 1958, a preliminary investigation (Voruntersuchung) was opened by the Wels Court against the Applicant who was suspected of having committed the crime of usury within the meaning of Section 3, sub-section 4, of the Usury Act and of Article 2 of the Regulation on Usury. At the same time, the court ordered the remand of the Applicant in custody (Untersuchungshaft) under Articles 175, paragraph 1, sub-paragraph 3 (danger of suppression of evidence - Verdunkelungsgefahr) and 180 of the Code of Criminal Procedure. When he appeared before the Investigating Judge of the Wels Court on the same day, Stögmüller stated that he had been notified of the two above-mentioned decisions of the Court, that he did not propose to appeal against them (beschwerdelos) and that he withdrew an application for his release which he had made earlier. He protested his innocence and noted that he would be interrogated in detail on the facts as soon as the charges were made against him. At the request of the Applicant (15 and 17 March 1958) the case was transferred to the Regional Court of Linz. On 21st April 1958, Stögmüller was released provisionally on parole: he gave a solemn undertaking (Gelöbnis), as provided for in Article 191 of the Code of Criminal Procedure, but was not required to provide any security. His detention while on remand has thus lasted, without interruption, for one month and eighteen days. According to the minute of that hearing, the Applicant made the following declaration: "I have been advised of the decision to release me on parole in pursuance of Article 191 of the Code of Criminal Procedure and I hereby give the prescribed solemn undertaking in full knowledge of the consequences of breaking that undertaking. I acknowledge that I must henceforth inform the Court immediately of any change of address. On my release I shall go to No. 255 Auhofgasse, Vienna XIII." 6. In June 1958, further information were laid with the Public Prosecutor’s Office in Linz, alleging fraud, misappropriation of funds and profiteering by the Applicant and also by a solicitor, Dr. S. Stögmüller was suspected, 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 Judge at the Regional Court of Linz had just begun extensive enquiries (Untersuchungshandlungen) when the Applicant submitted a request, on 23 October 1958, for the case to be transferred to the Regional Criminal Court of Vienna. Since the persons charged with him agreed to this, the case was duly transferred. The file was numbered 26 d Vr 1105/59. 7. In accordance with the provisions of Austrian law (ständige Geschäftsverteilung), the conduct of the preliminary investigation was assigned automatically, on 13 February 1959, to Investigating Judge Leonhard, who was already dealing with other cases to which was added, on 17 August 1959, the case of Rafael, Neumeister and others (see the judgment of the Court in the Neumeister case, Publications of the Court, 1968, Series A, p. 7). 8. On 15 November 1960, the Regional Criminal Court of Vienna decided: - to continue the preliminary investigation in a series of charges relating to thirty or thirty-one cases of aggravated fraudulent conversion (Veruntreuung-Article 183 of the Criminal Code), twenty cases of aggravated fraud (Betrug-Articles 197, 200 and 203 of the Criminal Code), one other case of fraud (Articles 197, 199 sub-paragraph (d) and 5 of the Criminal Code) and twenty-one cases of the crime of usury (Sections 2 and 3, sub-section 4, of the Usury Act); - to extend the preliminary investigation to five charges relating to cases of aggravated fraudulent conversion (Article 183 of the Criminal Code), fraud (Articles 197 et seqq. of the Criminal Code) and embezzlement (Untreue-Article 205 (c) of the Criminal Code); - to suspend, in accordance with Article 109 of the Code of Criminal Procedure, the preliminary investigation in respect of eight or ten charges. Under Article 184 of the Criminal Code, embezzlement is punishable by five to ten years’ severe imprisonment (schwerer Kerker) if the amount involved exceeds 10,000 schillings. Fraud and fraudulent conversion become crimes if the amount of the loss caused or so intended exceeds 1,500 schillings (Articles 200 and 205 (c) of the Criminal Code). The penalty incurred is "severe imprisonment" from five to ten years where such amount exceeds 10,000 schillings, or, in cases of fraud, where the criminal has displayed "exceptional audacity or cunning" or where he is an habitual swindler (Articles 203 and 205 (c) of the Criminal Code). The amounts mentioned above have been altered since: they are fixed at present at 2,500 and 25,000 schillings respectively. Section 2 of the Usury Act lays down a sentence of from three months’ to one year’s strict detention (strenger Arrest); a criminal who has practised usury professionally is punished by one to five years’ imprisonment where several persons have suffered serious financial loss (Section 3, sub-section 4, of the Usury Act). On 10 February 1961, the Applicant, who was then at liberty, was notified of the facts which were being held against him; he stated that he did not propose to appeal against the prosecution and the extension of the preliminary investigation. The Investigating Judge then examined him in respect of an instance of aggravated fraud against Gertrude Kucik. 9. On his release in April 1958, Stögmüller had continued to manage his business. When the competent authorities refused to transfer the licence from Karl Hammerling to the company Stögmüller and Co., the two other members left the company and Stögmüller became the sole shareholder and director in August 1959. He then transferred the seat of the company to Vienna. Having decided to change his occupation, he began to take flying lessons in the summer of 1959; after having produced the documents required by law, he obtained his amateur pilot’s licence on 10 December 1959 and a restricted radio-telephonic certificate on 25 February 1960. In order to become a professional pilot, he made, by the summer of 1961, almost four hundred flights over a total distance of 40,000 miles with landings on fifty different airports including Vienna, Linz, Wels, Salzburg, Graz, Innsbruck, Klagenfurt, Munich, Würzburg, Pöcking, Fulda, Hanover, Copenhagen, Malmö, Norköpping, Lugano, Bologne, Florence, Rome, Naples, Palermo, Alghero (Sardinia), Brindisi, Corfù, Salonica, Athens, Héraclion (Crete), Cavalla, Belgrade and Zagreb. In July 1961, he piloted on two occasions a plane carrying tourists between Austria, Switzerland, Italy, Greece and Yugoslavia. On 14 August 1961, the Applicant sold his company and his name was removed from the commercial register. 10. At the request of the Public Prosecutor’s Office, the preliminary investigation was extended, on 2 August 1961, in respect of facts concerning Alois Holzknecht, to offences under Articles 183, 197 and 205 (c) of the Criminal Code. 11. By order dated the same day and served on 4 August 1961, the Investigating Judge summoned the Applicant for 18 August 1961 for further examination. Stögmüller, however, did not appear: on August 7, he had arrived in Greece on board a plane which he said belong[ed] to his father; he did not return to Vienna until 21 August 1961. From Thasos in Greece, Stögmüller had, however, sent, on 14 August 1961, a postcard to his father in which he said he could be reached at Cavalla airport. He asked his father to send him a telegram in case of need and to telephone his lawyer, Mr. Tuma, to get him to have the examination adjourned ("damit die Terminverlegung vom 18.VIII klappt"). According to the statements made to the Sub-Commission by the Applicant’s counsel, Mr. Tuma, on 30 September 1965 - and these were not disputed by the Government - Mrs. Tuma, his wife and secretary, had, on 17 August 1961, applied for an adjournment of the examination, and the Investigating Judge had granted her application. When she appeared before the Sub-Commission as a witness on 1 October 1965, Mrs. Tuma, although not questioned on this point despite the request made by Mr. Tuma, stated that the Investigating Judge had accepted the excuses she had made to him verbally in explanation of the Applicant’s non-appearance. On 21 August 1961, immediately on his return, Stögmüller – again according to the undisputed statements of Mr. Tuma – accompanied Mrs. Tuma to the chambers of the Investigating Judge who, however, refused to examine the Applicant, saying that he did not have time to hear him and would carry out the examination in September 1961. 12. Again on 21 August 1961, the Public Prosecutor’s Office made an application dated 18 August 1961 to the Investigating Judge to enlarge the scope of the preliminary investigation opened against Stögmüller, to issue a warrant for his arrest and to remand him in custody under Articles 175, paragraph 1, sub-paragraphs 2 and 4, and 180 of the Code of Criminal Procedure. The Public Prosecutor’s Office alleged that there was a danger of absconding (Fluchtgefahr-Article 175, paragraph 1, sub-paragraph 2) and a danger of repetition of offences (Wiederholungsgefahr-Article 175, paragraph 1, sub-paragraph 4), because the Applicant had, by his unauthorised journey to Greece, broken the solemn undertaking given on his release (see paragraph 5 above) and had committed other offences in the years 1960 and 1961. 13. On 24 August 1961, the Investigating Judge ordered Stögmüller’s arrest. The warrant (Haftbefehl) stated that the Applicant had travelled abroad without permission of the court which constituted a breach of his undertaking of 21 April 1958 (paragraph 5 above), and that he had committed further offences in 1960 and 1961 at the expense of borrowers. The warrant emphasised that a breach of undertaking entailed the remand in custody of the person charged (Article 191 in fine of the Code of Criminal Procedure) and that the Applicant’s conduct after his release also proved that there was a danger of repetition of offences. 14. On the same day, the preliminary investigation against Stögmüller was extended, in respect of the facts concerning Hans Burgmüller, Josef and Maria Reichel and Karl Schumlitsch, to offences under Articles 197 et seqq, 205 (c) and 5 of the Criminal Code. 15. The Applicant was arrested on 25 August 1961. On the following day he was examined about his personal situation by a judge of the Regional Criminal Court of Vienna and was remanded in custody (Verwahrungshaft) under Article 175, paragraph 1, sub-paragraphs 2 (danger of absconding) and 3 (danger of suppression of evidence) of the Code of Criminal Procedure. On 29 August 1961, Stögmüller was notified that the preliminary investigation had been extended by orders of the Regional Criminal Court of Vienna of 2 and 24 August 1961 (see paragraphs 10 and 14 above). On the same day he was notified of that court’s decision to remand him in custody (Untersuchungshaft) for the reasons stated in the warrant of arrest. 16. On 29 August 1961, the Applicant lodged a first appeal against this decision. He maintained that, on his release, he had informed the Investigating Judge of the Regional Criminal Court of Linz that he was obliged to travel a great deal as his residence was in Vienna but his office in Linz, and that he had asked whether the court had to be advised in advance of each of these journeys. According to the Applicant, the Investigating Judge replied that he need only leave his address at his office or with his parents. Stögmüller claimed that he had always complied with this condition in respect of his numerous journeys in Austria and abroad, and in particular after he had obtained his pilot’s licence. He added that he also travelled abroad frequently as a member of the Austrian national judo team. In spring 1961 he is also said to have informed the Investigating Judge of the Regional Criminal Court of Vienna that he intended to change his occupation and become a pilot. The judge had raised no objection, although he might have been expected to deduce that the Applicant had made, and planned to make, many flights in Austria and abroad. As to his failure to appear before the Investigating Judge on 18 August 1961, Mrs. Tuma had explained the reasons to the judge and after Stögmüller’s return (21 August 1961) is said to have also asked the Investigating Judge to set a new date for the examination to which the judge replied that he was overwhelmed with work at the time but would summon the Applicant after 14 September. From these various circumstances Stögmüller deduced that he had not committed any breach of the solemn undertaking he had made on 21 April 1958. Stögmüller also claimed that he had sold his business by notarial deed on 14 August 1961 on the advice of the Investigating Judge himself and had begun to earn his living as a pilot. From that he drew the conclusion that there was no danger of repetition of offences. 17. On 6 September 1961, the Investigating Judge sent to the Public Prosecutor’s Office a copy of the appeal, asking for a detailed opinion on the statements of Stögmüller relevant to the danger of repetition of offences. The Judge added: "This on the lines of our conversation. The accused’s contention - which is not yet proved - that he had given up the business of money-lender since 14 August 1961 is irrelevant in this respect." In answer to this request, the Public Prosecutor’s Office replied on 11 September that it was of opinion that the reasons for detention continued to exist. Recalling that the subject-matter of the preliminary investigation opened against the Applicant had been extended in 1960 (see paragraph 8 above) and that following the laying of substantiated information (fundierte Anzeigen) a further extension had been ordered in 1961 (see paragraphs 10 and 14 above), the Public Prosecutor’s Office concluded that a danger of repetition of offences remained. As regards the danger of absconding, the Public Prosecutor’s Office pointed out, inter alia, that since his release the Applicant had broken his solemn undertaking made in 1958, had obtained his pilot’s licence, had gone to Greece without the consent of the judge, on board a plane belonging to his father, had gone on frequent journeys abroad, and had to expect, in the light of the results of the preliminary investigation, a heavy sentence which might run, under the relevant legislation, from five to ten years’ severe imprisonment (schwerer Kerker). Furthermore, the Public Prosecutor’s Office asked the Investigating Judge to close the preliminary investigation as soon as possible. 18. By decision of 7 September 1961, the Judges’ Chamber of the Regional Criminal Court of Vienna instructed the Investigating Judge to obtain from Judge Thurner, of Linz, who had released Stögmüller in 1958, information on the directions which he had given to the Applicant on that occasion. 19. On 16 September 1961, Stögmüller submitted to the Regional Criminal Court of Vienna a letter which Mr. Otto Bittner, the lawyer who had represented him at the time he was first remanded in custody in 1958, had written to Mr. Tuma on 11 September 1961. In reply to Mr. Tuma’s questions, Mr. Bittner explained in that letter that, when Stögmüller was released in 1958, it was understood from the beginning that he would go to Vienna. This was the reason why the Applicant had not been obliged to report to the authorities (Meldepflicht) at Linz. Another reason why such an obligation had not been imposed on the Applicant was that he had undertaken to leave his address at Mr. Bittner’s office so that he could be contacted within a week. These arrangements had in fact worked satisfactorily until the case had been transferred to Vienna. In the years 1958-59, Miss Ingrid Lintinger, Stögmüller’s secretary, had always kept Mr. Bittner informed of the whereabouts of her employer. 20. In a written statement of 20 September 1961 made to Judge Leonhard (see paragraph 18 above), Mr. Thurner, formerly Investigating Judge at the Court of Linz, emphasised for his part that: - if his memory were correct, there had been no mention in 1958, at the time of the release of Stögmüller, of anything except his address at Vienna; - it was nonetheless possible that the Applicant had informed him that he would not be able to give immediate notice to the court of each of the many journeys he would have to make; - even if this were true, Mr. Thurner had certainly not replied to Stögmüller that it would be enough for him to leave his address at his office at Linz or with his parents at Vienna; but more likely he had told him, as was usual in such cases, to ensure that summonses from the court reached him as soon as possible; this reply did not mean that the court was under a duty to find out for itself the whereabouts of the Applicant if he were needed; - that Mr. Thurner had not insisted, however, on being informed of every departure or return of the person charged - which was, anyway, in his opinion, a practice unknown at the Court of Linz. 21. On 20 September 1961, Judge Leonhard asked that Mr. Bittner - released beforehand by Stögmüller from the obligation to observe professional secrecy - be questioned on the following points: (a) what persons were present at the time of Stögmüller’s release, when mention was made of his going to Vienna (see paragraph 19 above)? (b) when it was decided to waive the obligation for Stögmüller to notify the authorities of every journey, had it been specified that the waiver also covered journeys other than those between Vienna and Linz and, for example, journeys abroad? On 9 October 1961, Mr. Bittner was heard as a witness by a judge of the Regional Court of Linz and stated that he had not attended, on 21 April 1958, at the release of Stögmüller, but Stögmüller had told him of his intention to go to Vienna, saying that the Investigating Judge was aware of it. Mr. Bittner added that Judge Thurner had asked him, on 30 April 1958, to see to it that the Applicant would be present when he was needed; furthermore, Stögmüller’s secretary kept herself informed regularly through Mr. Bittner about the progress of the proceedings. On 29 May and 7 July 1959, Judge Thurner had asked Mr. Bittner to have his client attend and Stögmüller did in fact appear within the prescribed times. At the request of the Applicant, Mr. Bittner notified, on 12 January 1959, the Regional Court of Linz that Stögmüller intended to go to Egypt: the court made no objection. Express permission to travel was never given. 22. On 19 October 1961, the Judges’ Chamber (Ratskammer) of the Regional Court of Vienna refused the appeal of 29 August 1961 (see paragraph 16 above). The Chamber held first that Stögmüller had gone to Greece without obtaining permission from the Investigating Judge. Basing its findings on the depositions made by Messrs Thurner and Bittner, it came to the conclusion that no general permission had been given by Mr. Thurner to the Applicant to cover travel in Austria or abroad. There was no doubt that Stögmüller had always returned from his travels but the Chamber considered that this fact was not relevant: in its view, it was clear from Article 191 of the Code of Criminal Procedure that any breach of the solemn undertaking was liable to entail the remand in custody of the person concerned. For reasons very close to those set out in the unfavourable opinion given by the Public Prosecutor’s Office on 11 September 1961 (paragraph 17 above), the decision of 19 October 1961 found, in addition, that there was a danger of absconding and a danger of repetition of offences. On this last point, the Judges’ Chamber considered that it was of little importance to know whether Stögmüller had in fact sold his business on 14 August 1961. The Applicant attacked this decision on 25 October 1961. He began by stressing the fact that neither he nor his lawyer had yet had an opportunity to consult the case-file (Akteneinsicht) and that they were therefore only able to give their views on the results of the enquiry and the preliminary investigation in the light of the elements contained in the decisions of the Court. Stögmüller furthermore maintained that as far as he could recall the only ground for his first remand in custody had been a danger of suppression of evidence and that, on the occasion of his release, the Investigating Judge had reminded him in the first place that it was essential not to suppress any evidence and in particular not to attempt to interfere with the witnesses. Accordingly, he considered he had not broken his solemn undertaking of 21 April 1958. On this topic, he returned to the arguments put forward in his appeal of 29 August 1961 (see paragraph 16 above). Emphasising that he was unaware of the contents of Judge Thurner’s statement (see paragraph 20 above), he also alleged that that judge had said to Mrs. Tuma, in September 1961, that in his view the Applicant had not broken his word. Stögmüller complained, moreover, that Mrs. Tuma had not been heard as a witness in her interviews of 17 and 21 August 1961 with Judge Leonhard (see paragraph 11 above). He added that she had asked the judge, on 21 August 1961, not to fix the Applicant’s examination in two days’ time because Stögmüller wanted to go to Steyr on that day, and that Judge Leonhard had made no objection. In the same context, the Applicant specified that, from 21 April 1958 onwards, he had made ten or twelve journeys abroad to participate in international judo competitions - in which sport he had been several times Austrian champion until 1960; almost all the newspapers had reported at the time his successes and defeats. Again, certain civil actions brought against him by persons who claimed to be victims of his activities had obliged him, he said, to make journeys in his own country. He considered he was entitled to assume that the Investigating Judge would learn of these absences from the press and from official documents. On this point the Applicant referred to files 40 Cg 174/60 (Regional Civil Court of Vienna) and 6 C 413/59 (District Court of Hietzing) as well as to the information laid by Holzknecht, Reichel and Schumlitsch. The Public Prosecutor concerned in the case would, for his part, have known of the above-mentioned journeys from the hearings which had taken place on 15 June 1960 in the case reference 2b Vr 5328/59, (see paragraph 4 above) with which he was also dealing. Stögmüller submitted that all these facts established that he had never believed it necessary to have permission to travel from the judge to whom he had never ceased, in any event, to be available. The Applicant further complained that the Judges’ Chamber had found, in its decision of 19 October 1961, that there was a danger of absconding and yet the warrant of arrest was based solely on the breach of the undertaking and on the danger of repetition of offences. In his submission, this way of proceeding had prejudiced the right of defence because he had not had an opportunity, in his appeal of 29 August 1961, to put forward arguments to establish that there was no danger of his absconding. In his view, there was no such danger in this case. On this point, Stögmüller recalled that he had returned from each of his numerous journeys and, particularly, that he had appeared before the Regional Criminal Court of Vienna on 15 June 1960 in the case 2b Vr 5328/59 (see paragraph 4 above) although he had to expect, according to the indictment, a sentence of imprisonment from five to ten years. As to the new complaints made against him, he stressed that he had been informed of them six months before his second arrest. He added that the sentence to be foreseen in the present case was the same as in 1958. The fact that he was preparing the professional pilot’s examination was, he also maintained, a further guarantee: once he obtained the necessary licence he could pilot only Austrian aeroplanes; the cost of his professional training - which amounted to about 150,000 or 200,000 schillings and which his father intended to cover by the sale of his aeroplane - constituted a real security. The Applicant also emphasised that his amateur pilot’s licence would expire on 1 December 1961 and he could not renew it unless he recovered his liberty before that date. On the question of the danger of repetition of offences, Stögmüller alleged, not without protesting his innocence that all the facts subsequent to his release were tied up with his activities as a financial agent, which activities he had ceased on 14 August 1961. Finally, he pointed out that he had not yet been examined about a great many of the facts alleged against him and especially that he had not been heard on the merits of the case since his second arrest. 23. The Public Prosecutor’s Office, to which the Investigating Judge had referred the appeal for opinion, replied on 31 October 1961: - that the Prosecutor who had attended the hearing on 15 June 1960 was not familiar, at that time, with the file in the present case which was dealt with by one of his colleagues until the spring of 1960 and therefore the Applicant’s statements on this point were shown to be incorrect; - that Stögmüller had committed his first offences even before he began to work in his company; - that detailed inquiries were to be made into the circumstances of the purchase of the aeroplane and the sale of the company Stögmüller and Co., as well as into the accused’s debts and the expenses of the professional training which he had described. The Applicant was in fact examined on these matters by the Investigating Judge on 28 December 1961. 24. On 10 November 1961, the Court of Appeal (Oberlandesgericht) of Vienna refused the appeal of 25 October. The court did not find it necessary to go into the question whether or not Stögmüller had broken his solemn undertaking given on 21 April 1958: contrary to the view held by the Judges’ Chamber, it considered that a breach of this nature could not constitute specific grounds for remand in custody and, on this point, referred to a decision by the Supreme Court of 22 August 1958. Consequently, the Court of Appeal concentrated entirely on determining whether there was any danger of the Applicant absconding and any danger of repetition of offences. On the first of these matters, it decided that no danger existed for the reason that, during a period of more than three and a half years, the Applicant had complied with every summons issued by the Investigating Judge and had returned from all his many journeys although he held a pilot’s licence, had an aeroplane at his disposal and was aware that the accusations against him had been aggravated. On the other hand, the court confirmed the decision of 19 October 1961 as regards the danger of repetition of offences. It noted in effect that according to the well-substantiated information (durchaus fundierte Anzeigen) laid by Josef and Maria Reichel, Karl Schumlitsch, Hans Burgmüller and Alois Holzknecht, Stögmüller had, between May 1959 and March 1961, either alone or in concert with Knöpflmacher and Brommer, committed further punishable acts in connection with the granting of loans, thereby causing a loss of more than 70,000 schillings to the persons concerned. The court therefore concluded that Stögmüller might, if released until the final result of the criminal proceedings in question ("bis zur rechtskräftigen Beendigung des vorliegenden Strafverfahrens"), commit further offences on the lines of those he had committed over a number of years. Although the Applicant had theoretically withdrawn from business, the court held that the danger was merely increased thereby: deprived of his previous means of livelihood, Stögmüller might be tempted to have recourse to fraudulent practices in order to maintain his customary standard of living. 25. On 24 November 1961, Stögmüller, in a letter to the President of the Regional Criminal Court of Vienna, described in detail his business career and, in particular, the preparations he had made to take up the occupation of professional pilot. He stressed, in particular, that he had sufficient means to enable him to complete his pilot’s training because he had obtained 80,000 schillings as the proceeds of sale of his company and hoped to get 160,000 schillings for his father’s aeroplane which he intended to sell. While offering to provide bail if he was set free, Stögmüller declared that he was ready to give a solemn promise not to engage any more in business activities. Finally, he complained that he had never had an opportunity to explain his case to Judge Leonhard, and he asked the President to allow him to do this before a member of the Committee (Präsidium) of the Court. A perusal of the file does not show whether the President of the Court replied to this letter. 26. On 6 December 1961, the Applicant lodged a second application for provisional release. While he recognised that he had lost his livelihood by selling his business, he stressed that he hoped to obtain a professional pilot’s licence and that his father had agreed to provide for his maintenance; he claimed this proved that there was no danger of repetition of offences. He added that he would be unable to take up flying as a career if his detention were prolonged. He also offered to provide security in an amount commensurate with his assets and with those of his family. This application was accompanied by a letter addressed to Mr. Tuma on 27 November 1961, by the Applicant’s father, Johann Stögmüller. The latter showed his readiness, if his son were released, to pay for his maintenance and for his professional training as a pilot. On 21 December 1961, Stögmüller supplemented his application by explaining in detail the prospects he saw for a pilot in Austria; he referred in particular to a report in the "Express" newspaper on the need for Austria to recruit pilots for lack of Austrian pilots. The Applicant renewed his offer not to engage any more in business activities and declared himself ready to produce to the court within a reasonable time a contract of employment as a pilot. 27. On 29 December 1961, the Public Prosecutor’s Office, consulted by the Investigating Judge, expressed its opposition to the release of the Applicant on the grounds that, in this case, there was a danger of repetition of offences. The Office referred on this point to the decision of the Court of Appeal (paragraph 24 above) and to the discovery made in December 1961 of other serious misdemeanours on the part of Stögmüller since his release. Further, the Office also observed that Stögmüller was in debt and had had to bring civil action, which was still pending, for the proceeds of the sale of his company. 28. The Investigating Judge refused the application on 3 January 1962. He pointed out, in substance, that the situation had not altered in the Applicant’s favour since the decision of 10 November 1961; that, on the contrary, the danger of repetition of offences had become more acute as it had been learned that in 1959 Stögmüller had been instrumental in causing a certain Michael Schwanninger to lose several hundred thousand schillings; that Stögmüller was in debt and had no means of his own. The Investigating Judge did not express views on the offer to provide bail. 29. The Applicant appealed against this decision on 8 January 1962. Relying on the above-mentioned letter from his father (paragraph 25 above), he contended that the circumstances had indeed changed in his favour. He added that, according to case-law of the Supreme Court, only clear indications could be used to establish that a danger of repetition of offences existed. It seemed to him, then, that there were such indications in the present case because he had given up his activities as a financial agent and the Schwanninger case dated from 1959. 30. On being consulted once again, the Public Prosecutor’s Office gave an unfavourable opinion on 11 January 1962. The Office considered, in effect, that the existence of a danger of repetition of offences resulted definitely from the numerous punishable acts committed by Stögmüller since 21 April 1958. In this context, the Office further recalled that the accused had negotiated loans on a large scale even before beginning to work in his company. The Office finally suggested that further inquiries into the financial position of the Applicant and his father be commenced, and also into the circumstances surrounding the alleged sale of the aforesaid company. 31. The Judge’s Chamber of the Regional Criminal Court of Vienna refused the appeal on 25 January 1962. Referring to the reasons given by the Court of Appeal on 10 November 1961, and by the Investigating Judge on 3 January 1962, it added that there was strong reason to suspect that Stögmüller had continued his operations in 1960. According to information received by the court on 19 January 1962, the Applicant had persuaded Stefanie Holzdorfer and Margarete Lorin that they would make an excellent bargain if they purchased an aeroplane: as a result of this transaction, Mrs. Holzdorfer had lost her entire fortune, consisting of a house valued at 400,000 schillings, while the father of Stögmüller had acquired ownership of the plane. The Judges’ Chamber noted that as the two women claimed ownership of the aeroplane Johann Stögmüller could not sell it if he wished to do so to support his son and pay for his professional training as a pilot. The Chamber did not take any decision on the offer made by the Applicant to provide security. It had been decided on 24 January 1962 to open a preliminary investigation in the aeroplane case which was the subject of separate prosecutions (26 d Vr 592/62). 32. On 25 January, and again on 12 and 15 February 1962, Stögmüller appealed against the decision of 25 January. Recalling that he had sold his company on 14 August 1961, he drew the conclusion that there was no danger of repetition of the offences. He also stated that he had about 250,000 schillings available of which 170,000 came from the sale of the aeroplane and 80,000 were in the form of a bill of exchange outstanding against the purchase of the company; he deduced from this that his upkeep and his professional training were assured. He complained in particular that the Investigating Judge and the Judge’s Chamber had not taken into account the aforementioned letter from his father (paragraph 26 above). After describing in detail the way in which he was preparing for the pilot’s examination (paragraph 9 above), he stressed that he had almost finished his professional training and that due to the dearth of professional pilots in Austria, he would have no trouble in quickly finding employment in that profession. From this he reasoned that there was no danger of repetition of offences. In order to offer in this respect additional guarantees, he declared himself ready to undertake that, in the event of his release, he would carry on no business activities, he would report regularly to the court on his occupation and he would produce to the court his contract of employment. 33. The Vienna Court of Appeal refused the appeal on 14 March 1962. It considered that neither the Applicant’s proposed change of occupation nor the time he wished to devote to training as a pilot was likely to avert the da