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

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AUSTRIA   (Application n o 2178/64)                     JUDGMENT       STRASBOURG   10 November 1969 In the Matznetter 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:   H. ROLIN , President   A. HOLMBÄCK   A. VERDROSS   G. BALLADORE PALLIERI   M. ZEKIA   J. CREMONA   S. BILGE , and also Mr. M.-A. EISSEN , Registrar , and Mr. J.F. SMYTH , Deputy Registrar , Decides as follows: PROCEDURE 1. The Matznetter 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 3 April 1964 under Article 25 (art. 25) of the Convention by an Austrian national, Mr. Otto Matznetter. The Commission’s request, to which was attached the report provided for in Article 31 (art. 31) of the Convention, was dated 12 July 1967 and the application of the Government 31 July 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 13 July 1967 and the latter on 8 August 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 22 July 1967 under Rule 21 (6) of the Rules of Court, the President of the Court referred the Matznetter case to the Chamber set up to hear the Neumeister and Stögmüller cases. 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, through the Registrar, the Agent of the Government and the Delegates of the Commission regarding the procedure to be followed (Rules 26 and 35 (1)). On 21 August 1967, he decided that the Agent should submit a memorial by 29 December 1967, on receipt of which it would be open to the Commission’s Delegates to submit a memorial not later than 24 February 1968. The Government’s memorial, dated 22 December 1967, was received by the Registry on 3 January 1968. By letter dated 18 January, 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 28 January, 1 June 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 and 28 August 1968. 5. On 26 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 12 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. On 19 December 1968, the Registrar received from the Agent of the Government a written reply to most of the questions. 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 began on the afternoon of 11 February 1969, half a day earlier than had been previously arranged, the Agent of the Government and the Delegates of the Commission having agreed to this slight change in the timetable. The hearings continued on 12 February; they were held in the Human Rights Building, Strasbourg. There appeared before the Court: - for the Commission:   Mr. C.T. EUSTATHIADES ,     Principal Delegate , and   MM. F. ERMACORA and 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 12 February 1969, the Court put several questions to the persons appearing before it, which were answered on the same day. The hearings were closed at 5.35 p.m. on 12 February. 10. On 14 February 1969, the Court instructed the Registrar to obtain from the Agent of the Government certain additional information which was provided on 28 April. 11. After deliberating in private the Court gave the present judgment. THE FACTS 1. The Commission and the Government have referred the Matznetter case to the Court for a decision as to whether the facts of the case disclose a violation by Austria of its obligations under Article 5, paragraphs (3) and (4), and Article 6, paragraph (1) (art. 5-3, art. 5-4, art. 6-1), of the Convention. 2. The facts of the case as appearing from the Commission’s report, the memorial of the Government, the other documents produced and the oral submissions of the representatives of the Commission and the Government may be summarised as follows: 3. Mr. Otto Matznetter, an Austrian citizen born on 21 December 1921, is resident in Vienna. He was called up for service in the German army in September 1940, wounded in November 1941 and taken prisoner by the Russians. In March 1943, his right leg was amputated at the thigh in a prison camp: he remained in the Soviet Union until August 1945. He was released on account of his incapacity for work and he returned to Austria in September 1945. As a result of this amputation and his exposure to cold during captivity, he suffers from myocardial disease and complete deafness in his right ear; he draws an 80 per cent disablement pension. He was married in 1946 and has three children. On his return to Austria the applicant completed his studies. He obtained the degree of "Diplomkaufmann" for advanced commercial studies and later, in March 1948, that of Doctor of Commerce (Doktor der Handelswissenschaften). Shortly afterwards, he was appointed to a post in the Financial Administration of the region of Vienna, Lower Austria and Burgenland. In the course of his duties, he had to check, in 1951, the accounts of the firm Schiwitz and Co. This firm was founded in 1939 by Fritz Schiwitz and Franz Knapitsch and dealt in the sale and resale of cereals, flour, etc. In 1955, Fritz Schiwitz acquired the firm "Arista Tierfutter und chemische Produkte" and made it over as a gift to his wife, Margarete Schiwitz. In 1956, Mrs. Schiwitz acquired 80 per cent of the shares in the firm "Adolf Stögmüller" which was concerned in the manufacture of, and trade in, animal foodstuffs, manures, etc. At the beginning of 1957 the firms "Arista Tierfutter und chemische Produkte" and "Adolf Stögmüller" joined with Margarete Schiwitz in establishing the "Vereinigte Mischfutterwerke" (VMW). "Arista" withdrew from VMW in 1962 and became a limited company under the name "Arista-Mischfutterwerke", all the shares in which were held by Margarete Schiwitz. As four other businesses, including "Arista-Graz" were also under the control of Mr. and Mrs. Schiwitz to varying degrees, the group came to be known as the "Schiwitz group". Otto Matznetter left the civil service in April 1954 and set himself up as a tax consultant on 1 January 1955. In his new profession he was very soon employed by the Schiwitz group, first as assistant and later as their principal adviser in tax, economic and financial matters. He was furthermore given power of attorney (Einzelprokurist) for "Schiwitz and Co." (1960) and was appointed manager (Geschäftsführer) of "Arista-Graz" (1961) and chairman of the board of directors of "Arista-Mischfutterwerke" (1963). In fact, he seemed to play, with Margarete Schiwitz, a predominant role in each of the "Schiwitz companies" and he came to devote himself almost exclusively to these activities. During this time he seems to have lived in great style and, at any rate, beyond his means, considerable though they were. 4. On 13 and 15 May 1963, the Economic Branch of the Vienna police (Wirtschaftspolizei) applied to the Regional Criminal Court (Landesgericht für Strafsachen) of that city for the immediate arrest of Margarete Schiwitz, Fritz Schiwitz and Otto Matznetter. The police suspected the two first-named of having committed the misdemeanour of simple bankruptcy (fahrlässige Krida, Article 486, paragraphs 1 and 2, of the Criminal Code) and the felony of aggravated fraud (Betrug, Articles 197, 200, 201 paragraph (d) and 203 of the Criminal Code) and the third-mentioned person of having abetted them in this crime (Beihilfe, Article 5 of the Criminal Code in combination with Article 197 et seq.). In Austrian law fraud becomes a felony (Verbrechen) if the loss caused or so intended exceeds 2,500 Schillings; it is punishable by five to ten years’ severe imprisonment (schwerer Kerker) if the amount exceeds 25,000 Schillings or if the offender has shown "exceptional audacity or cunning" or if he is an habitual swindler (Articles 200 and 203 of the Criminal Code). At the time these amounts were 1,500 and 10,000 Schillings respectively: they were raised to their present level by an Act of 4 July 1963. Indeed, it was stated in the application of 15 May 1963 that a credit firm, Creditanstalt-Bankverein, had suffered a loss of several million Schillings as the result of the three suspects’ misdeeds and that they could thus expect a heavy sentence; it was deduced therefrom that there was a danger of their absconding (Fluchtgefahr), which was increased in the case of Mr. and Mrs. Schiwitz by the fact that they owned property abroad, namely a farm in Angola. The Economic Branch of the police further maintained that there was a danger of "suppression of evidence" (Verdunkelungs- und Verabredungsgefahr): neither the witnesses nor the suspects had so far been examined and it could be feared that the latter would use tricks to prevent the discovery of the truth or hinder the course of the preliminary investigation. The Public Prosecutor’s Office (Staatsanwaltschaft) of Vienna appears, for its part, to have applied to the court on 14 and 15 May 1963 for the opening of a preliminary investigation (Voruntersuchung) against Margarete Schiwitz, Fritz Schiwitz and Otto Matznetter, and for their immediate arrest. 5. An investigating judge of the Vienna Regional Criminal Court granted these different applications immediately. In the warrants for arrest, which he issued on 15 May 1963, it was stated that Mr. and Mrs. Schiwitz and the applicant were suspected of having committed aggravated fraud (Articles 197, 200, 201 paragraphs (a) and (d), and 203 of the Criminal Code), fraudulent bankruptcy (betrügerische Krida, Article 205 (a) of the Criminal Code) and simple bankruptcy (Article 486 paragraphs 1 and 2, of the Criminal Code) in connection with loans they had obtained from the Creditanstalt-Bankverein and numerous other creditors; it was estimated that their dishonest dealings had caused loss in the region of eighty to one hundred million Schillings. The warrants referred to Article 175 (1), sub-paragraphs 2 to 4 (danger of absconding, danger of suppression of evidence and danger of "repetition of offences", Wiederholungsgefahr) and Article 180 (1) of the Austrian Code of Criminal Procedure. The warrant issued against Matznetter adopted in substance the reasons put forward by the Economic Branch of the police as regards the danger of his absconding and the suppression of evidence (paragraph 4 above). With regard to the first-mentioned danger, it further cited the possibility that he might evade prosecution by going to Angola with the two other persons charged with him. It added that the applicant’s misconduct (Verfehlungen) covered so long a period that there was a consequent danger of repetition of the offences. The three arrests so ordered were effected on 15 May 1963. Matznetter was arrested at about 9.45 p.m., about 12 hours after Fritz Schiwitz; he was in the company of Margarete Schiwitz, a lawyer, Mr. Promitzer and, it seems, his own wife. Other arrests took place later, including those of Herbert Roth (May 1963), Vilma Iby (May 1963), Elizabeth Stögmüller (October 1963) and Adolf Stögmüller (December 1964), persons who were employed in various ways by the Schiwitz firms, and Karl Udolf (May 1963), a branch manager of the Creditanstalt-Bankverein. 6. In accordance with Austrian law (ständige Geschäftsverteilung), the conduct of the preliminary investigation was given automatically to Mr. Gerstorfer, an Investigating Judge, who was already at the time in charge of several cases of lesser importance. 7. On 16 and 17 May, the applicant was examined at some length by the Economic Branch of the police (twelve pages of minutes); on 18 May he appeared before Judge Tinhof for a brief examination as to identity (a one-page minute) and then, on 20 May, before Judge Gerstorfer (a half-page minute). The judge informed him that he was being remanded in custody under Article 176 (1) of the Code of Criminal Procedure. Matznetter stated that he was prepared to do all he could to hasten the course of the preliminary investigation. 8. On 27 December 1963, the applicant made a first application for release on parole (Gelöbnis, Article 191 of the Code of Criminal Procedure); he added further reasons on 7 January 1964. As regards the danger of absconding, he emphasised in substance: - that about two weeks before his arrest, he had read in the newspapers that the activities of the Schiwitz group had been denounced to the authorities by a rival company; that he had received confirmation of this on 10 May from one of the two Chairman-Managing-Directors of the Creditstalt-Bankverein; that nevertheless he had in no way sought, or even thought, to evade the imminent prosecution, as Mr. Leon, lawyer to the Creditanstalt-Bankverein, could bear out; that, on the contrary, he had stayed in Vienna where he had taken an active part in negotiations which led to a settlement out of court between the Schiwitz companies and their creditors, one of whom was the Creditanstalt-Bankverein; that the reason he did not go voluntarily to the police on 15 May was because he wished to warn his wife and await the return of his lawyer; - that since his arrest he had done his best to aid the Economic Branch of the police and the Investigating Judge; he had explained how he came to enter the employment of the Schiwitz group; he had furthermore described the purely sentimental reasons which induced him, in 1957-58, to defend Margarete Schiwitz against blackmailers; that he had also described the bullying and unfair way in which she had dragged him, little by little, into a "vicious circle" (Teufelskreis), forcing him to draw up false balance sheets while at the same time concealing from him, until March 1963, the extent to which the group was indebted; - that he was 80 per cent disabled as a result of his amputation and the diseases from which he suffered (myocardial damage, oto-sclerosis and complete deafness in the right ear); that his family lived in Vienna; that his wife had had to resume, in July 1963, her former occupation as a welfare officer, although during the war she had contracted pulmonary and skeletal tuberculosis which had compelled her to spend three years in a sanatorium; that there was no one to take charge of their three children then aged four-and-a-half, nine and eleven-and-a-half years; that for lack of means, he had had to withdraw the two older children from the French Lycée at Vienna; - that he had no property abroad, nor could he transfer funds abroad; that in any case he was crippled with debt and his lawyer, Mr. Czerwenka, had had great difficulty in saving him, until now, from the institution of insolvency proceedings (Insolvenzverfahren); - that he had no previous convictions and that he enjoyed a good reputation; - if he were to abscond, he would in any event lose his only chance of saving his honour, his home and his private life, that is a trial which would probably throw light on the whole affair. Matznetter also denied that there was a danger of suppression of evidence: he observed that either the court or the police had already taken possession of all documents necessary for the investigation and the principal persons concerned, including those charged, had already been thoroughly interrogated, and that the expert reports to be drafted did not lend themselves to tactics of collusion. The applicant finally recalled that his office was being supervised by a temporary administrator and that the Schiwitz companies were being managed by their principal creditor, the Creditanstalt-Bankverein. In his opinion, this was sufficient to exclude any danger of the offences being repeated. A brief and unfavourable opinion on the application was given by the Public Prosecutor’s Office on 16 January 1964 and the application was refused the next day by the Investigating Judge. In effect, the judge took the view, like the Public Prosecutor’s Office, that neither the danger of absconding nor the danger of repetition of offences had ceased to exist; he considered that the continued existence of the first followed from the extent of the loss caused – about 123 million Schillings - and from the severity of the sentence which was to be expected in consequence, and that of the second danger followed from the duration and systematic character of the alleged dishonest dealings. Matznetter appealed against this decision on 28 January 1964. He adduced the following arguments in addition to some of those previously advanced: - in a judgment delivered on 29 April 1960, the Austrian Supreme Court (Oberster Gerichtshof) had held that the severity of the sentence to be expected does not create "a presumption in law or the danger of absconding" except in the case of a crime punishable by a sentence of not less than ten years’ imprisonment (see the opening words of Article 192 of the Code of Criminal Procedure); in all other cases, and therefore in the present case, the competent court must examine the facts to see whether such a danger actually existed; that the Investigating Judge had failed to fulfil this obligation; - again, Article 175 (1) (4) of the Code of Criminal Procedure would be devoid of meaning if it merely referred to a purely theoretical possibility, in this case that the applicant might make use of his professional qualifications to commit new offences, which, by the nature of things, would necessarily occur outside the "Schiwitz group" which was now being managed by the Creditanstalt-Bankverein. The Judges’ Chamber (Ratskammer) of the Regional Criminal Court of Vienna dismissed the appeal (Beschwerde) on 10 February 1964. It began by setting out a number of factors from which it deduced that there was a danger of absconding: - Matznetter had played an important rôle in the "Schiwitz enterprises"; - he faced a heavy sentence, if only by reason of the enormous loss caused (at least 80 million Schillings) and of the systematic way in which he had abused the trust of others; - the circumstances of his arrest seemed to indicate that he had sought to flee; in fact, he had only been apprehended late in the afternoon of 15 May 1963 and after a real chase (eine ständige Verfolgungsfahrt); he was in the company of Margarete Schiwitz, who was carrying her passport and 16,000 Schillings, and of Mr. Promitzer who, according to the accused Elizabeth Stögmüller, had persuaded her brother, Adolf Stögmüller, to go abroad; - in April 1963, no one foresaw in reality action by the police or the organs of justice in a case which the Creditanstalt-Bankverein and the "Schiwitz group" were seeking to "hush up"; - between the beginning of 1960 and the month of March 1963, more than nine million Schillings lent by the Creditanstalt-Bankverein to the firm of Schiwitz and Co. had been transferred to Germany and Italy on the initiative of Adolf Stögmüller, without it being proved that they corresponded to payments for imports; only long investigations (langwierige Untersuchungen) would make it possible to determine whether Adolf Stögmüller had since brought this sum back to Austria; - the appellant had connections abroad: in 1962, he had visited the property which Fritz Schiwitz had acquired in Angola; moreover, he had frequently travelled outside Austria with Margarete Schiwitz; - his financial position must be considered to be good in spite of debts exceeding 500,000 Schillings. The Judges’ Chamber also found that there existed a danger of repetition of offences. In this respect, it pointed out in particular that Matznetter had begun his fraudulent activity as early as 1957, that he had pursued it energetically and systematically and that he had not troubled himself about making good the loss which had been caused. From this it inferred that he could be suspected of wishing to resume his activities if he recovered his liberty, especially as the "Schiwitz enterprises" had not yet been liquidated and, something impossible to understand, he had not been removed (nicht entfernt) when the Creditanstalt-Bankverein had taken over their management. The applicant wrote to the Public Prosecutor’s Office on 11 February 1964. Referring to a conversation which he had had the day before with Judge Gerstorfer and Mr. Czerwenka, he made the following "offer": in the absence of lawful reasons for his detention and in view of his personal and family situation, he would be released until the opening of the trial; in exchange, he would contribute to the speedy completion of the preliminary investigation by producing documents and giving information; he could also assist the Creditanstalt-Bankverein in realising the assets of the Schiwitz group and recovering certain sums due. The Public Prosecutor’s Office replied to the Investigating Judge, on 14 February, that it saw no reason to change its unfavourable opinion of 16 January. On 18 February 1964, Mr. Czerwenka lodged an appeal against the decision of 10 February. Emphasising that the defence had not yet been permitted to consult the file, he made express reservations as regards the findings of fact on which the Judges’ Chamber had thought it could rely in the light of the first results of the preliminary investigation. In his view, these findings were, besides, irrelevant to the matter: they in no way proved the existence of reasons justifying detention, as the preliminary investigation does not have the same object as the examination of an application for release on bail. Going on from there, Mr. Czerwenka criticised the Judges’ Chamber for having relied on the severity of the sentence facing the appellant and for having thus made the same mistake in law as the Investigating Judge. He further maintained: - that Matznetter had played a minor rôle in the "Schiwitz group"; - that if he had really wished to flee, he would not have remained in Vienna after the arrest of Fritz Schiwitz; that the 16,000 Schillings found on Margarete Schiwitz did not entitle one to speak of preparations for flight, especially with respect to the appellant; that even if Mr. Promitzer had persuaded Adolf Stögmüller to go abroad, he had in no way prevailed upon Matznetter to follow this example; - that, in April 1963, the Creditanstalt-Bankverein and the applicant really did expect a prosecution to be opened; that they had not attempted to "hush up" the affair, but only sought to achieve a settlement out of court which would cause the least possible loss to the creditors of the "Schiwitz group"; - that even if funds had been transferred to Germany and Italy on the initiative of Adolf Stögmüller, there was no evidence that they were at the disposal of Matznetter; that after a preliminary investigation lasting several months it was difficult to see the necessity of "lengthy enquiries" on this point; that the guarantees accorded by law to detained persons would be illusory if it were necessary to proceed to such enquiries in order to establish the absence of reasons justifying detention; on the contrary, it was for the courts to establish that such reasons existed; - that the appellant had no rights over the property owned by Fritz Schiwitz in Angola, which was moreover encumbered with mortgages and of which he had known the existence for a long time; that neither did he have the means of travel to that distant country; that the release on bail of a detained businessman would almost never happen if the mere fact of his having travelled abroad and of having connections abroad was enough to create a danger of his absconding: - that it was not possible to understand how the Judges’ Chamber could, at one and the same time, describe Matznetter’s financial position as good and mention his heavy indebtedness; that, besides, even a sound financial position did not justify the fear of a danger of absconding; - that moreover, there existed no danger of repetition of offences as circumstances had changed since the time of the commission of the acts of which the appellant was charged; that the firms in the "Schiwitz group" had been placed under the administration of their principal creditor; that it was therefore not only incorrect but offensive to the Creditanstalt-Bankverein to suggest that the appellant might again take up the preparation of false balance sheets and similar activities if he were released; that, moreover, Matznetter was doing his utmost to assist the ascertaining of the truth; that his attitude, therefore contradicted the assertion, which was in any case irrelevant, that he had no wish to make good the loss caused by him; that, lastly, his detention scarcely allowed him to take steps designed to repair such loss. On 10 March 1964, the applicant himself addressed to the Court of Appeal (Oberlandesgericht) a supplementary memorial. He alleged in particular: - that the contested transfers of funds would not have been discovered without his statements, which facts showed that he had not been involved in them; - that he had only gone to Angola at the urgent request of the couple Schiwitz and for the sole purpose of negotiating there, with the assistance of the Austrian Consulate, a payment agreement with creditors; that the Schiwitzs had not honoured the agreement so made; that he had been held responsible for this with the result that all his "connections" in Angola had broken with him. However, he was too late; on 4 March, the Court of Appeal had upheld the decision of 10 February, being of opinion that it was grounded on a detailed reasoning to which it was sufficient to refer back. 9. On 13 November 1964, seven months and ten days after lodging his Application with the Commission, Matznetter applied a second time for release on bail, repeating many of his former arguments and citing, in addition, Articles 5 (3) and 6 (2) (art. 5-3, art. 6-2) of the Convention. Over and above his own word of honour, he proffered the fixing, if necessary, of a surety by two named guarantors – a businessman and a tax adviser (Article 193, paragraph 1 of the Code of Criminal Procedure and Article 1374 of the Civil Code). An unfavourable opinion was given by the Public Prosecutor’s Office on 23 November 1964; in its view, the considerations set out in the decision of 10 February retained their full worth. Without committing himself on paper, even to the extent of an expression of opinion, the Investigating Judge informed the Judges’ Chamber of the application made by Matznetter and of the above-mentioned opinion given by the Public Prosecutor’s Office; it is not known whether the judge’s oral report was accompanied by a clear recommendation in favour of or against release. The Judges’ Chamber of the Regional Criminal Court of Appeal dismissed the application on 3 December 1964. On the question of a danger of absconding, the Chamber pointed out, inter alia, that, at the time of his arrest, the appellant was carrying his passport in his car (seinen Reisepass bei sich im Auto hatte). The Chamber added that the existence of a danger of repetition of offences made it superfluous, having regard to Article 192 of the Code of Criminal Procedure ("... detention ordered on account of danger of absconding may be stayed or lifted through ..."), to examine the guarantee proffered. The applicant attacked this decision on 14 December 1964. Taking up - in order to develop it - the argument which he had put forward previously, he also emphasised that the Convention had the force of constitutional law in Austria since 4 March 1964 and therefore took precedence over Article 175 of the Code of Criminal Procedure; in his view, a remand in custody for more than eighteen months exceeded "the reasonable time" provided for by Article 5 (3) (art. 5-3) of the Convention. The appeal was signed by Mr. Czerwenka and was supplemented by two memorials which Matznetter drafted himself. The first, dated 21 December 1964, was above all an effort to prove once again the absence of a danger of absconding. It emphasised particularly the following points: - under the terms of the out of court settlement of 13 May 1963, the Creditanstalt-Bankverein and the other creditors had abandoned their civil claims against the persons charged; - the appellant had only played a minor role in the alleged dishonest dealings, which had, in any event, commenced a good while before his taking up employment in the "Schiwitz group"; - if he had drawn up false balance sheets, he had done so without any criminal intent or hope of gain but was forced to do so by Margarete Schiwitz; - in the execution of his duties, he had at all times sought to save, and later to improve, the "Schiwitz companies" and to protect the interests of other parties concerned; - far from expecting a harsh verdict, he hoped for a prompt beginning of his trial which would give him an opportunity, in public, to admit his mistakes and also to justify himself and claim the benefit of "extraordinary" extenuating circumstances (an allusion to Article 265 (a) of the Code of Criminal Procedure); - he considered that he had served in advance the greater part, if not the whole, of any possible sentence, because he had already spent nineteen months in detention, and could count, as a first offender, on an early release (an allusion to Article 55 (a) of the Criminal Code and to the 1949-1960 legislation on conditional release); consequently, and on account of his disability and his incapacity to engage in any business abroad, he had no reason to think of absconding, a way out which, in any case, he had not chosen at the time when it was possible for him to do so; - when he learnt, about midday on 15 May 1963, of the arrest of Fritz Schiwitz, he had said to Margarete Schiwitz, Mr. Promitzer and Mr. Czerwenka that it was absolutely essential to delay his own until the following day; in fact, he wanted to see Mr. Leon, who had conducted the out-of-court negotiations on behalf of the Creditanstalt-Bankverein and who was due to return that evening from a journey to Hamburg; he also wanted to warn his wife, who was unaware of the whole matter; he had indeed succeeded in reaching her at the last minute and in speaking to her in Mr. Promitzer’s car until he was arrested by the police; as for his passport, which he used as an identity card even in Austria, he did not at all have it "on him": he had left it in its usual place, the glove compartment in his car, which had been damaged the day before and left parked in the city quite some distance away; the expression "ständige Verfolgungsfahrt", which was used in the decision of 10 February 1964 and was worthy of a Sherlock Holmes, did not therefore have anything to do with the realities of the case. On the question of a danger of repetition of offences, Matznetter stressed once more that his office was abandoned by two thirds of his clients and by his chief assistant, and was being managed by a temporary administrator. He added that according to a report of the Economic Branch of the Police, the Schiwitz firms had been liquidated. He recalled once more that up to the end he had taken part, with great effort and to the detriment of his private and family interests, in the preparation of an out-of-court settlement which would cause the least possible loss to the creditors. In conclusion, the appellant had pointed out that the idea of freeing him seemed to have had, this time, the support of the Investigating Judge; he described the critical situation of his wife and his children and claimed that his detention impeded the preparation of his defence. In his memorial of 7 January 1965, Matznetter put forward an additional argument based on the release of Fritz Schiwitz which had taken place on 30 December 1964; as Matznetter considered that he was less seriously implicated in the case, he asked to be granted the benefit of a similar measure. The Vienna Court of Appeal refused the appeal on 20 January 1965 after having observed: - that the appellant was suspected of having fraudulently extorted ("betrügerisch herausgelockt") from several banks, since 1958 and in consort with other persons charged, some hundred and twenty million Schillings by the assignment of fictitious credits, by making accommodation agreements (Gefälligkeitswechsel) and issuing uncovered cheques and by the establishment of false balance sheets, thereby causing a loss amounting to at least eighty million Schillings; - that with respect to the danger of repetition of offences, the Court could limit itself to referring to the detailed and convincing reasoning of the decision challenged; that this reasoning was all the less refuted as the arguments of Mr. Czerwenka contradicted, on one point, those of Matznetter himself: according to the notice of appeal of 14 December 1964, the liquidation of the "Schiwitz enterprises" had not yet taken place while the memorial of 21 December spoke of it as an accomplished fact; - that at a certain moment, the appellant had, on his own admission, gone into hiding; that such an attitude ("Siechverborgenhalten") was sufficient to justify the fear that he might evade prosecution if he were set free; that to this extent the Court also accepted the reasoning of the Judges’ Chamber as regards the danger of absconding; that it was of little importance whether Matznetter had his passport on his person when arrested or whether he had left it in his car; that the provisional release of Fritz Schiwitz did not in any way weaken the decisions of 10 February and 3 December 1964; that in point of fact the Judges’ Chamber had found a continuing danger of absconding - this being moreover the only danger - in the case of the co-accused Schiwitz, which the latter had, however, dispelled by furnishing a guarantee. 10. On 21 April 1965, the applicant made a third application for release on bail which this time was not accompanied by an offer of guarantees. He first complained, in general terms, of the refusal of his earlier applications and of the insufficiency of the reasons (mangelhafte Begründungen) given by the competent instances which, in his view, had in no way rebutted his arguments. He added that the decision to release Fritz Schiwitz proved that neither the necessity to clear up the matter of the transfers of the funds in question nor the prospect of flight to Angola constituted, in the case of the persons charged with him and, a fortiori, in his own case, justifiable considerations. As regards the danger of repetition of offences, he recalled that he had lost all influence over the "Schiwitz companies" on their transfer (faktische Übergabe) to their principal creditor, on the sale of one of them and on the imminent liquidation of the others; here again he drew an argument from the fact of the release of Fritz Schiwitz and he emphasised that his power of attorney had expired. He also laid stress on the fact that his Application No. 2178/64 had been declared admissible by the European Commission of Human Rights on 16 December 1964. Lastly, he asserted that he was suffering from hypertension, an injury to the myocardium, arrhythmia and an oedema of the calf and ankle; he maintained that these various disorders were attributable to his detention and that they risked causing permanent trouble of such a nature as to reduce his capacity to work or even to bring about his death if he did not leave prison very soon. On 26 April 1965, the Investigating Judge communicated this application to the Public Prosecutor’s Office, which, three days later, suggested that the Institute of Forensic Medicine of the University of Vienna should examine Matznetter’s state of health. The report in question was completed on 21 May 1965 - ten days after the closing of the preliminary investigation (paragraph 13 below) - but did not reach the Regional Criminal Court until one month later, 21 June. It was seven pages long and arrived at the conclusion that the applicant was suffering from a serious illness within the meaning of Article 398 of the Code of Criminal Procedure, which rendered him unfit to be kept in detention (nicht haftfähig). On 25 June, the Public Prosecutor’s Office informed Judge Gerstorfer that it was no longer opposed to the release of the applicant in view of the expert report which it had received from the judge on 23 June. Neither the expert report nor the opinion of the Public Prosecutor’s Office seems to have given rise to comment by the Investigating Judge. On 8 July 1865, the Judge’s Chamber of the Regional Criminal Court of Vienna ordered Matznetter’s release on parole for the following reasons: "... In his latest application for release, dated 21 April 1965, he (Matznetter) now submits in essence that there is no danger of repetition of offences as, in effect, any influence (...) over the firms (...) has been lost by him as a result of their transfer to the principal creditor, and, in addition, he is now dangerously ill. The Chamber can not now (nunmehr) disregard these observations, especially since, according to the report from the Institute of Forensic Medicine of the University of Vienna, Otto Matznetter is in fact seriously ill. The facts being as stated, not only does the danger of repetition of the offences (Wiederholungsgefahr) disappear, but also the danger of absconding (Fluchtgefahr), and more especially since, on the basis of the above-mentioned report, the defendant must be considered unfit to serve sentence in the event of his conviction and thus there are now no special grounds to suppose that he might abscond ...". In consequence, the applicant was released on 8 July 1965 at about 4.45 p.m., after making the solemn undertaking provided for by Article 191 of the Code of Criminal Procedure. His remand in custody had therefore lasted, uninterrupted, for twenty five-months and twenty-three days. 11. Several persons charged with him had been released before Matznetter, with or without the provision of sureties, in particular Vilma Iby (20 September 1963), Herbert Roth (23 October 1963), Elizabeth Stögmüller (23 March 1964), Karl Udolf (26 October 1964) and Fritz Schiwitz (30 December 1964). As for Margarete Schiwitz, she came out of prison on the same day and at the same hour as the applicant. On 4 April 1966, the Investigating Judge, Mr. Gerstorfer, gave evidence before two members of the Sub-Commission. They asked him, in particular, what differences the competent authorities saw between the cases of the applicant and of Karl Udolf and Fritz Schiwitz as regards the possibility of release. The witness did not give a specific explanation on this point. Replying then to certain questions concerning Matznetter’s health, he in substance said: - that he had been surprised to read in the application of 21 April 1965 that the applicant was suffering from a serious illness, as he had never spent any time in the prison hospital ward; - that before the month of April 1965, there was no reason to believe in the necessity of a medical examination. 12. The different decisions of the Judges’ Chamber and the Court of Appeal on Matznetter’s applications for provisional release were given, in pursuance of Articles 113 and 114 of the Code of Criminal Procedure, after hearings not open to the public had been held, in the course of which the Public Prosecutor’s Office had been heard in the absence of the suspect and of his lawyer (in nichtöffentlicher Sitzung nach Anhörung der Staatsanwaltschaft bezw. der Oberstaatsanwaltschaft). However, on 4 April 1966, the Investigating Judge asserted, before the Delegates of the Sub-Commission, that he had not omitted to communicate verbally to the Judges’ Chamber the personal observations of the applicant. As regards the officers of the Public Prosecution, the Commission has been unable to determine whether they had presented to the Judges’ Chamber and to the Court of Appeal detailed reasoning or whether they had been satisfied to state their opinion in summary form. 13. On 11 May 1965, a little under two months before the applicant’s release, Judge Gerstorfer had closed the preliminary investigation and sent the case record, which without appendices filled seventeen volumes, several of them containing over a thousand pages, to the Public Prosecutor’s Office (Articles 111 and 112 of the Code of Criminal Procedure). 14. In the proceedings before the Commission, the Parties agreed to acknowledge that the facts which the Investigating Judge had to try to elucidate were of great complexity. The difficulty lay mainly in the nature and volume of the alleged dishonest dealings. At the outset, the preliminary investigation was concerned with eighteen or nineteen persons and it covered a large number of charges. In particular, it was necessary to retrace the economic and financial development of the Schiwitz companies in order to discover when their indebtedness became excessive; to study their correspondence, accounts and portfolio, the minutes of meetings of their statutory organs and their dealings with over a dozen banks; to examine in detail a mass of operations - assignments of credits, transfers abroad, preparation of balance sheets, issue of bills of exchange and cheques, making of mortgages, etc. - involving hundreds of millions of Schillings and spread over about six years, in order to determine whether they involved fraud; to ascertain the part played in each operation by the various persons charged, in particular certain bank officials who were suspected of having been accomplices. 15. The Investigating Judge was assisted in his work by the police, who in this case acted on his instructions and as auxiliaries of justice (Articles 24 to 27 of the Code of Criminal Procedure). He also decided, on 22 May 1964, to call in an expert economist, Mr. Schwarzenberg, and an expert on banking, Mr. Kosian. Their reports, dated 26 March and 1 April 1965 respectively, totalled 490 pages, with hundreds of pages of appendices. On 4 April 1966, Judge Gerstorfer emphasised before two Delegates of the Sub-Commission that his aim in appointing the two experts had been to speed up the proceedings. 16. In this case no investigations outside Austria proved necessary. Adolf Stögmüller, one of the persons charged, had gone to the United States and from there to Mexico and early in 1964 a request for his extradition was made. However, he returned to Austria of his own accord at the end of December 1964. In the course of his interrogation, which began immediately and was completed on 17 February 1965, he said nothing to incriminate the applicant. The police heard thirty-one witnesses between 13 May 1963 and 21 May 1964 at Vienna and in other places (130 pages of records). Between 17 March 1964 and 28 April 1965, the Investigating Judge questioned forty-nine of them in the capital (287 pages of records); eleven of the statements which he took in this way concerned Matznetter. After 20 May 1963 (see paragraph 7 above), the applicant appeared before Judge Gerstorfer more than forty times - six times between 20 November and 19 December 1963, four or five times early in February 1964, twenty-seven or