CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 juillet 1971

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AUSTRIA (MERITS)   (Application n o 2614/65)                     JUDGMENT       STRASBOURG   16 July 1971 In the Ringeisen 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:   MM.   H. ROLIN , President ,   Å. HOLMBÄCK   A. VERDROSS   T. WOLD   M. ZEKIA   A. FAVRE   S. SIGURJÓNSSON and also MM. M.-A. EISSEN , Registrar , and J.F. SMYTH , Deputy Registrar , Decides as follows: PROCEDURE 1. The Ringeisen case was referred to the Court by the European Commission of Human Rights (hereinafter called "the Commission"). The case has its origin in an application against the Republic of Austria submitted to the Commission on 3rd July 1965 under Article 25 (art. 25) of the Convention by an Austrian national, Michael Ringeisen. 2. The Commission’s request, to which was attached the report provided for in Article 31 (art. 31) of the Convention, was lodged with the Registry of the Court on 24th July 1970, within the period of three months laid down in Articles 32 (1) and 47 (art. 32-1, art. 47). Reference was made in the request to Articles 44 and 48 (art. 44, art. 48) and to the declaration made by the Republic of Austria recognising the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the Commission’s request is to obtain a decision from the Court as to whether the facts of the case do or do not disclose, on the part of the Republic of Austria, a violation of the obligations binding on it under Articles 5, paragraph (3) and 6, paragraph (1) (art. 5-3, art. 6-1), of the Convention. 3. On 22nd August 1970, the President of the Court drew by lot, in the presence of the Registrar, the names of six of the seven Judges called upon to sit as members of the Chamber, Mr. Alfred Verdross, the elected Judge of Austrian nationality, being an ex officio member under Article 43 (art. 43) of the Convention; the President also drew by lot the names of three substitute Judges. 4. The President of the Chamber, after ascertaining the views of the Agent of the Austrian Government (hereinafter called "the Government") and the Delegates of the Commission regarding the procedure to be followed (Rule 35 (1)) and taking note of their agreement, decided on 2nd October 1970 that it was not necessary at that stage for memorials to be lodged. On the instructions of the President, the Registrar requested, on 30th October 1970, the Agent of the Government to produce certain documents which were filed on December 3rd. 5. The Court held a preparatory meeting in Strasbourg on 23rd and 24th November 1970, following which a request for further information and for the production of supplementary documents was addressed to the Government and the Commission. The Commission’s reply was received on 5th December 1970 and the Government made its reply and filed further documents on 10th and 17th February and on 4th and 6th March 1971. 6. After having consulted, through the Registrar, the Agent of the Government and the Delegates of the Commission, the President decided, by an Order of 17th December 1970, that the oral hearings should open on 8th March 1971. 7. The Court authorised the Agent and Counsel of the Government to address the Court in German at the oral hearings, the Government undertaking inter alia, responsibility for the interpretation into French or English of their pleadings and statements (Rule 27 (2)). 8. The oral hearings were held in public at the Human Rights Building at Strasbourg on 8th, 9th and 10th March 1971. There appeared before the Court: - for the Commission:   Mr. J.E.S. FAWCETT ,       Principal Delegate ,   Mr. F. ERMACORA and Mr. G. SPERDUTI ,        Delegates ; - for the Government:   Mr. E. NETTEL, Envoy Extraordinary and Minister Plenipotentiary,         Agent ;   Mr. W. PAHR, Head of the International Division       in the Constitutional Department of the Federal         Chancellery, and   Mr. C. MAYERHOFER, Ministerialsekretär       at the Federal Ministry of Justice,   Counsel . The Court heard the addresses and submissions of these representatives and also their replies to a number of questions put to them. Furthermore, the Government produced some complementary documents. The hearings were closed provisionally on 10th March 1971. 9. Two further documents were filed by the Commission on 22nd March 1971 and observations on them were received by the Registry from the Government on April 16th. 10. After having made final the closure of the proceedings and deliberated in private, the Court gives the present judgment. THE FACTS 11. The facts of the case, as they appear from the report of the Commission, the documents produced and the addresses of the representatives made before the Court, may be summarised as follows: I. RINGEISEN’S DEALINGS 12. Mr. Michael Ringeisen is an Austrian citizen, born in Hungary in 1921. During the years 1958 to 1963, he was in business as an insurance agent in Linz, Austria; he also negotiated loans and dealt in real estate. 13. Sometime in 1958, Mr. Franz Widmann, a shopkeeper at Linz, answered a newspaper advertisement seeking a loan of 100,000 Austrian Schillings (AS). In this way he came into contact with Ringeisen to whom he advanced, in November 1958 and January 1959, 150,000 AS in several instalments. At the time of this transaction, Ringeisen mentioned to Widmann that he needed this money for a Mr. Wenger but Widmann did not meet him. At Ringeisen’s instigation, a contract was signed in 1959 naming the couple Widmann as creditors and the couple Wenger, amongst others, as debtors. Subsequently, Ringeisen repaid 72,000 AS to Widmann. Also in 1959 and 1960, Ringeisen negotiated in the name of Mrs. Gertrud Wenger a loan of 11,000 AS from one Rudolf Schamberger. 14. On 9th May and 6th November 1961, Ringeisen obtained general powers of attorney from the Roth couple with whom he had previously had business relations. These powers of attorney were granted in consideration of a loan made by Ringeisen to the Roth couple and enabled him to act in their name in dividing up and selling, leasing and encumbering land which they owned at Alkoven and was entered in the Annaberg Land Register, Upper Austria. As part of the same transaction Ringeisen was given an option to purchase the property; at the same time the Roth couple undertook that, in the event of Ringeisen exercising the option and of approval of the transfer of ownership to him being refused by the competent administrative body, they would not sell the property to anyone else, would refrain from acting as owners, and would grant Ringeisen the right of exclusive occupation (letters of 3rd, 14th and 16th November 1961). 15. On 6th February 1962, Ringeisen made a contract with Mr. and Mrs. Roth for the purchase of the property; the purchase price was 400,000 AS. The contract for sale was submitted on 30th March 1962 to the Eferding District Real Property Transactions Commission (Bezirksgrundverkehrskommission, hereinafter referred to as the "District Commission") for approval. The Upper Austrian Real Property Transactions Act (Grundverkehrsgesetz) provides as follows: "Section 1 - (1) Every transfer of ownership and granting of usufructuary rights by legal act inter vivos in respect of a piece of land wholly or partly given over to agriculture or forestry is subject to approval according to the provisions of this Act.   ..... (2) Refusal of such approval renders the transaction null and void.   ..... Section 4 - (1) Legal transactions must correspond to the public interests in creating and maintaining agricultural or forest areas and in maintaining and reinforcing a productive farming community or in maintaining and creating economic small or medium-sized agricultural properties.   ..... (5) Transactions which do not satisfy the requirements of sub-sections (1), (2) or (3) above, shall not be approved.   ..... Section 6 - In particular, the requirements for approval of a transaction (Section 4) shall not be satisfied where there is reason to fear (a) that the purpose of the purchaser is to resell the land as a whole or in lots for profit; (b) that peasant farm holdings or small agricultural businesses or economically substantial parts thereof are being acquired to create or enlarge great estates;   ..... (d) that estates are to be ... diverted from their use as farmland or forest for no adequate reason; (e) that only a speculative capital investment is envisaged;   ..... Section 7 - If a legal transaction requires approval under the provisions of this Act, the contracting parties shall apply for approval to the District ... Commission within four weeks of concluding the transaction." 16. The District Commission refused, on 28th September 1962, to approve the contract for sale. It found that the property could provide a farming family with a livelihood and that Ringeisen was an insurance agent and not a farmer. Referring to applications which Ringeisen had made for the approval of the purchase by him from the Roth couple of other properties and which had been refused, the District Commission considered that the files revealed clearly a picture of speculation in land. It also observed that Ringeisen had already marked out thirty-four plots for building. In conclusion, the District Commission remarked that, while fear of certain intentions on the part of a purchaser was sufficient under Section 6 of the Act for refusal of approval, the fact that in this case there was clearevidence that such intentions existed must carry even more weight. 17. In January 1962, Ringeisen had begun to sell part of the property in building sites; he continued to do this throughout 1962 and up to April 1963. After having obtained an expert opinion from the Provincial Planning Office (Landesplanungsstelle) on the basis of which he had the property surveyed and marked out, he was granted permission to build on the property by the Eferding District Administration (Bezirkshauptmannschaft) on 17th November 1962. These two bodies operate independently of the District Commission and their opinion or permission has no bearing on its decision: on the contrary, it is given expressly subject to the decision of the District Commission. 18. Ringeisen, it appears, has failed to inform prospective purchasers that he was acting under a power of attorney he held from the Roth couple and if any of them remarked that Ringeisen was not himself the vendor it was explained that the transaction was being effected in this way for taxation purposes. The purchasers were informed at the time by Ringeisen that permission had been obtained for building and were assured that work could begin at once. The purchase contracts drawn up by Ringeisen’s lawyer included a clause stating that the Real Property Transactions Commission’s approval was necessary to implement them, but Ringeisen had informed the purchasers that this was a mere formality. The last twenty or so purchase contracts were not concluded through the same lawyer and did not contain that particular clause. In all cases the purchase price was payable immediately. In June 1962, the Roth couple purported to withdraw the powers of attorney from Ringeisen. He disputed their claim and a final decision ordering him to deposit the powers of attorney with the court was taken on 13th September 1963. 19. Ringeisen appealed to the Regional Real Property Transactions Commission (Landesgrundverkehrskommission, hereinafter referred to as the "Regional Commission") against the District Commission’s refusal to approve the contract for sale he had made with Mr. and Mrs. Roth. The relevant provisions of the Upper Austrian Real Property Transactions Act are: "Section 18   ..... (2) A Regional ... Commission shall be set up in the office of the Provincial Government for decisions in last instance. Its members shall not be bound by any instructions in the exercise of their duties and their decisions shall not be subject to repeal or alteration by the administration.   ..... (4) The Regional ... Commission shall consist of eight members, namely (a) a judge appointed by the Provincial Government as president; (b) one member appointed by the Head of the Provincial Government in his capacity as President of the Regional Agrarian Senate (Landesagrarsenat); (c) two members appointed by the Provincial Government from the persons representing the interests of townspeople and residents in housing estates; (d) one member appointed by the Provincial Government from the representatives of industry and commerce; (e) one agricultural expert appointed by the Provincial Government; (f) two members appointed by the Chamber of Agriculture (Landwirtschaftskammer) for Upper Austria.   ..... (8) Members are appointed for a term of five years ...   ..... Section 20   ..... (2) Appeal against the decision of the District ... Commission may be made to the Regional ... Commission.   ..... Section 21   ..... (2) The Real Property Transactions Commissions shall take their decisions by majority votes and in private. ... No information about the contents of deliberations, and in particular the voting, shall be divulged to a third party.   ..... ." 20. The Regional Commission met on 12th February 1963 and decided to inspect the property which it did on 2nd April, on which date it also held an oral hearing. On 13th May 1963, the Regional Commission dismissed Ringeisen’s appeal; it found that Ringeisen had made contradictory statements concerning his intended use of the property that he had divided up and had sold - in all about fifty building plots - land which was farmland of good quality. For this and various other reasons, it was to be feared that he would withdraw land from agricultural use on a large scale without adequate reason and that he intended to make a speculative capital investment (Section 6 (d) and (e) of the Upper Austrian Real Property Transactions Act). 21. On 5th July 1963, Ringeisen made an appeal (Verfassungsbeschwerde) to the Constitutional Court (Verfassungsgerichtshof) against the decision of the Regional Commission; he alleged violation of the rights of all citizens to equality before the law and to have proceedings held before the judge established by law (gesetzlicher Richter - Articles 7, No. 1 and 83, No. 2 of the Constitution). In the appeal it was alleged, inter alia, that at the meeting of the Regional Commission on 13th May 1963, two members took part and voted who had not been present at one or both of the previous meetings at which the Regional Commission had examined the appeal. The Constitutional Court gave its decision on 20th June 1964. Following its own precedents dealing with the question of the proper legal composition of a board (Kollegialbehörde) within the meaning of Article 133, No. 4, of the Constitution, it found that the circumstances complained of by the appellant had led to a violation of the right to have proceedings held before a judge established by law. It accordingly set aside the decision of the Regional Commission. 22. As a result of this judgment, the Regional Commission had to make a new decision on Ringeisen’s appeal against the District Commission’s decision of 28th September 1962. At the opening of the new proceedings, Ringeisen challenged several members of the Regional Commission on the grounds of bias: he pointed out that the president had represented the Regional Commission in 1964 before the Constitutional Court; two members had been heard as witnesses in those proceedings and one of them, Mr. T., was alleged to have stated that a different contract for the sale of the same property had already been approved; a third member, appointed by the Upper Austrian Chamber of Agriculture, was said to have already pronounced himself against the approval of the contract for sale of 6th February 1962; lastly, a fourth and a fifth member had taken part in the decision of 13th May 1963 which the Constitutional Court had set aside on 20th June 1964. In support of his challenge, Ringeisen relied on Section 7 of the 1950 General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) which provides in sub-section 1 as follows: "(1) Administrative official (Verwaltungsorgane) shall refrain from performing their duties and shall delegate their functions:   ..... (iii) In cases in which they have been or are appointed as the agents of a party; (iv) When there are other serious grounds giving rise to doubt as to their complete impartiality;   ..... ." The Regional Commission took its decision on 3rd February 1965. It first observed that although Ringeisen was not entitled in law to a right of challenge under the aforementioned Act, his allegations of bias should nevertheless be examined ex officio. These allegations proved, however, to be unfounded. In its decision, which dealt at length with the allegations made, the Regional Commission found, in particular, that the approval which Mr. T. had mentioned concerned in fact the sale of different property owned by the Roth couple. Ringeisen’s appeal was also refused by the Regional Commission. In the light of enquiries it had caused to be made, it found that, in all, two hundred and nine building sites had been marked out on the properties in question; that Ringeisen had already concluded contracts for the sale of seventy-eight building plots and that approval of thirty-three of these contracts had been definitively refused by the Real Property Transactions authorities; that Ringeisen had encumbered the different properties with charges for substantial amounts of money and that he had made contradictory statements in his different applications for approval. The Regional Commission held that Ringeisen’s plans were incompatible with the principles enunciated in Section 4 (1) of the Upper Austrian Real Property Transactions Act as it was to be feared that more than half of the various properties in question were to be sold for building. The contract for sale of 6th February 1962 was therefore found to be designed to destroy and break up a farm which had up till then been a workable unit, to bring about the abandonment of farm buildings and to effect a resale of valuable agricultural land for profit (Section 6 of the Upper Austrian Real Property Transactions Act). 23. Ringeisen made an appeal on 2nd April 1965 to the Constitutional Court against this decision. Among other grounds, he reiterated the charges of bias he had made against six members, including the president, of the Regional Commission (paragraph 22 above). The Constitutional Court rejected the ground of appeal on 27th September 1965: "It has not been necessary for the Court to deal with the allegations in the appeal to the extent that they attempt to show that the challenged members of the Commission were biased within the meaning of Article 7 of the General Administrative Procedure Act and ought therefore to have refrained from acting since, even if these allegations were correct on this point, the applicant was not affected in his right to be judged by the judge established by law by the refusal of his challenges. For a party has no right to challenge a body competent to decide or take part in the making of the decision on the grounds of bias. A board does not cease to be competent because a biased member takes part in the proceedings. Nor does the participation of a biased member - unless a special law expressly provides otherwise - affect the proper composition of a board any more than the competence or proper composition of an authority consisting of a single person (monokratische Behörde) is called in question through the bias of the regularly appointed office holder (Organwalter). It was therefore not necessary to go into the question whether bias actually existed as alleged (see to the same effect earlier decisions of the Constitutional Court of 9th October 1958, Slg. Nr. 3408, 6th October 1959, Slg. Nr. 3588, and 19th November 1960, Slg. Nr. 3829)." The other grounds of appeal were also rejected in the same judgment. II. THE PROSECUTIONS OF RINGEISEN A. The fraud case (19 Vr. 394/63) 24. On dates which the documents before the Court do not disclose, F. Widmann and R. Schamberger laid charges of fraud against Ringeisen. 25. On 13th February 1963, Mr. and Mrs. Roth laid charges with the public prosecutor’s office at Linz against Ringeisen for abuse of the power of attorney given to him and for unlawfully encumbering and selling their property. On 21st February, the public prosecutor’s office requested that preliminary inquiries (Vorerhebungen) be instituted against Ringeisen. On 28th February, Ringeisen appeared for the first time before the investigating judge and was interrogated. 26. In March, June and July 1963, further complaints were made by Mr. and Mrs. Roth to the prosecuting authorities that Ringeisen continued to misuse the powers they had delegated to him. In the light of the Regional Commission’s decision of 13th May 1963 (paragraph 20 above), the prosecuting authority at Linz made an application to the Linz Regional Court (Landesgericht) on 16th July 1963 that a preliminary investigation (Voruntersuchung) should be instituted against Ringeisen on the ground that he was suspected of having committed offences under Articles 197 and 205c of the Criminal Code. On 19th July, the public prosecutor’s office further requested that the documents authorising Ringeisen to act on behalf of the Roth couple should be taken away from him and kept in safe custody, or, if this should not prove possible, that Ringeisen should be detained on remand for danger of committing further offences (paragraph 57 below). On 25th July, the authorities were informed that the Roth couple had obtained a decision from the civil court that Ringeisen should return the said documents. 27. One day later, the prosecuting authorities were informed by Dr. Kehrer, a lawyer acting on behalf of ten purchasers of plots that the applicant had converted to his own use the purchase monies they had paid without being in a position to transfer to them the title of the properties purchased. Acting on this information, the public prosecutor’s office applied for an extension of the preliminary investigation. On 6th August 1963, the day after his arrest (paragraph 57 below), Ringeisen appeared before the investigating judge and was heard on the charges made against him. On 16th August, Mr. and Mrs. Roth made a statement in which they denied that investments which Ringeisen claimed to have made in their property had increased its value; they also alleged that Ringeisen had harvested and sold the fruit and crops for his own benefit. 28. Criminal charges were made by Dr. Kehrer on 27th August 1963 on behalf of nine further complainants: it was alleged that Ringeisen had published a new advertisement for the sale of building plots on 20th July and one of the complainants intimated that a copy made by Ringeisen of the Roths’ power of attorney was being produced. The police drew up a report which was submitted to the Linz Regional Court on 30th August. Ringeisen was released from custody on 23rd December 1963 (paragraph 58 below). 29. Between 18th September 1963 and 6th April 1964, twenty-eight further charges and supplementary information were laid by other purchasers of building plots and by the Roth couple. In the same period, the investigating judge held twenty-three hearings at which Ringeisen or witnesses were examined, directed that comprehensive enquiries be made and ordered the extension of the preliminary investigation to cover the new complaints. The investigating judge closed the preliminary investigation on 8th April 1964. 30. On 5th May 1964, Ringeisen lodged with the Federal Ministry of Justice a disciplinary complaint (Aufsichtsbeschwerde) against the authorities and courts at Linz who were dealing with his case. Upon his request, the applicant’s counsel was given the case-files from 6th to 12th May. The case-files were also unavailable between 25th June and 6th July 1964 because of proceedings in the Civil Division of the Linz Regional Court. 31. The public prosecutor dealing with the case was absent on leave from 27th July to 24th August 1964. On 1st August, Ringeisen lodged with the public prosecutor’s office an application for transfer of his case to another court area and challenging judges (Delegierungs- und Ablehnungsantrag). On 25th August, the public prosecutor’s office transmitted this application to the court with unfavourable comment. The case-files were transmitted on 1st September 1964 for decision on the application to the Supreme Court (Oberster Gerichtshof) which refused it on September 16th. In the meantime, an investigating judge at the Linz Regional Court had made an order on 31st August 1964 that these fraud proceedings (19 Vr. 394/63) were to be conducted separately from other investigations of charges of fraudulent bankruptcy (19 Vr. 1566/64, paragraph 49 below), which had been made on 24th August 1964. 32. In accordance with Article 112 of the Code of Criminal Procedure, the case-files were forwarded to the public prosecutor’s office on 12th October 1964. Under that provision, the public prosecutor’s office should, within a period of two weeks, file the indictment or inform the investigating judge that it does not intend to pursue the prosecution; it may also apply to have the preliminary investigation extended. On 4th January 1965, the public prosecution applied for an extension of the preliminary investigation to cover a new complaint laid on 31st December 1964 by Dr. Kehrer on behalf of another purchaser. On the same day, the files were sent, in connection with other proceedings, to the Vienna District Court (Bezirksgericht) and then, on January 19th, to the Wels Labour Court (Arbeitsgericht); they were returned to Linz on 3rd February. Two days later the investigating judge examined six witnesses. 33. Ringeisen was summoned to appear before the investigating judge on 8th February 1965 but arrived late and excused himself; his examination then took place on 16th February. On 18th February, he was allowed to inspect the case-files and make photostat copies. 34. On 20th February 1965, a supplementary complaint was made by the lawyer, Dr. Kehrer, and the public prosecutor’s office applied, on February 25th, for an extension of the preliminary investigation to include this complaint. The investigating judge decided, on 2nd March 1965, to extend the preliminary investigation to include the supplementary complaints made since 31st December 1964. 35. On 15th March 1965, Ringeisen deposited with the Linz Regional Court a decision of the Linz District Court dated 23rd February and relating to the entry of a charge on his property (paragraph 60 below); while he was at the court he was, however, arrested in connection with the fraudulent bankruptcy proceedings, No. 19 Vr. 1566/64 (paragraph 61 below). 36. The indictment (Anklageschrift) was filed with the Linz Regional Court on 27th April 1965 and notified to Ringeisen on April 30th. It charged him with the offences of aggravated fraud (Betrug, Articles 197, 200, 201 (d) and 203 of the Criminal Code) and of aggravated fraudulent conversion (Untreue, Article 205c of the same Code). He was accused of: I. Having falsely pretended, between 3rd November 1958 and 5th April 1963, to be an honest real estate seller, borrower and agent with a view to induce: A. 78 persons to acts detrimental to them, namely to make payments of some 1,400,000 AS. It was alleged that Ringeisen had concealed from them the fact that the contracts for sale which he made with them could be implemented only with the approval of the Real Property Transactions Commission; Ringeisen had only submitted thirteen of these contracts to the Real Property Transactions Commission a year after making them and a further twenty-one after more than one year; in the end, his contracts for sale no longer included a clause stating that such approval was required for their implementation. It was also alleged that Ringeisen had received 1,359,000 AS from his business of "killing" real estates (gewerbsmässige Güterschlächterei) and that he refused to repay the money; B. two other persons, (1) Franz Widmann and (2) Rudolf Schamberger, to grant loans of which a large part had not been repaid (paragraph 13 above); II. Having misused, with intent to profit, the power of attorney which had been given to him by the Roth couple on 9th May 1961 and revoked by them as of 22nd August 1962, by encumbering their land at Alkoven with various charges after this last date. 37. On 3rd May 1965, Ringeisen lodged an objection (Einspruch) with the Court of Appeal (Oberlandesgericht) against the indictment. He alleged in particular that he had no intention of causing loss to the purchasers of sites and that he had invested more than 2,000,000 AS in the property. In the same document, he also requested the transfer of all civil and criminal proceedings to courts outside the jurisdiction of the Linz Court of Appeal: he alleged that it was absolutely impossible to find at Linz a really impartial and objective judge who was not prejudiced against him on account of either having taken part in the work of the Real Property Transactions Commissions or having been concerned with litigation arising out of his dealings with the property. The public prosecutor’s office opposed these applications the following day. 38. On 19th May 1965, the Linz Court of Appeal dismissed Ringeisen’s objection against the indictment for the reason that the results of the investigation sufficed to ground the suspicion that he had committed the offences of which he was charged. The case-files were transmitted to the Linz Regional Court on 25th May. On 8th June, Ringeisen appeared in court and was heard; he withdrew various complaints he had made and maintained only his application for transfer. In consequence, the case-files were submitted on 11th June to the Supreme Court which refused the application on July 8th. 39. On 3rd August 1965, Ringeisen made a challenge before the Court of Appeal against all the judges at the Linz Regional Court. The Court of Appeal ordered him to specify the grounds for the challenge which, however, he withdrew on 6th September 1965 except as regards the investigating judge who had ordered his arrest in the fraudulent bankruptcy proceedings on 15th March 1965; he also entered a further general application for transfer. The challenge was rejected by the President of the Linz Regional Court on 13th September and the Court of Appeal ruled, on 27th September, that there was no jurisdiction to hear an appeal on this point. The application for transfer was transmitted on 24th September to the Supreme Court which refused it on October 27th. 40. Ringeisen was notified on 3rd November 1965 that the trial would open on December 13th. On 4th December, he made various applications for transfer and to have the trial cancelled. On 6th December, the presiding judge at the Linz Regional Court informed him that, as the Supreme Court had already refused two earlier applications for transfer, his further applications of 4th December would not be entertained and there was no reason to cancel the trial. The trial opened on 13th December and, on 16th December, was adjourned to 13th January 1966 on the application of both the prosecution and the defence in order to have further evidence taken. Two experts were nominated by the court on 20th December to evaluate the amount of money which Ringeisen had invested in the property. On 7th January 1966, Ringeisen made an application to the effect that a plea of nullity for safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) should be entered on his behalf by the Attorney General (Generalprokurator). However, on 10th January he was informed by the presiding judge that, in view of the hearing beginning on 13th January, the files could only be submitted thereafter to the Attorney General’s office; similarly, new applications for a transfer which the applicant had intended to make could not be submitted to the competent authority for the time being as this would delay proceedings. 41. The trial was resumed on 13th January 1966 and ended the following day. Ringeisen was found guilty of aggravated fraud on the counts concerning the 78 purchasers and Franz Widmann (IA and IB (1) of the indictment). He was acquitted of the other charges (IB (2), R. Schamberger and II, the Roth couple). He was sentenced to three years’ severe imprisonment (schwerer Kerker) with the additional punishment of fasting and "sleeping hard" (hartes Lager) once every three months. In fixing sentence, the Regional Court took account of aggravating and of extenuating factors: on the one hand, the purchasers of the building plots were poor persons who had lost their savings or borrowed money to pay Ringeisen, the criminal conduct of Ringeisen had continued over a long period, the damage caused greatly exceeded the amount of 15,000 AS fixed in Article 203 of the Criminal Code; on the other hand, Ringeisen’s previous record was unblemished, some purchasers had not sustained loss and the damage would be made good in part from payment out of the Roth couple’s bankruptcy. The court found, in Ringeisen’s favour, that there were circumstances for "special mitigation" (ausserordentliches Milderungsrecht) as provided for in Article 265a of the Code of Criminal Procedure. In accordance with Article 55a of the Criminal Code, the court reckoned as part of the sentence the time which Ringeisen had spent in custody on remand (from 5th August to 23rd December 1963 and from 15th March 1965 to 14th January 1966, paragraphs 59 and 77 below). Immediately after the delivery of judgment, Ringeisen gave notice of his intention to enter a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung) against his conviction and sentence; the public prosecutor gave notice that he would enter a plea of nullity in respect of the acquittal and an appeal against the sentence as being too lenient. 42. The public prosecution lodged, on 25th February 1966, a plea of nullity and an appeal. Ringeisen’s plea of nullity and appeal were lodged on March 3rd. The case-files were forwarded on 9th March to the Supreme Court which fixed a hearing for 14th July 1966. On 27th June 1966, the Supreme Court dismissed an application by Ringeisen to have witnesses examined and for leave to be present at the hearing. 43. The pleas of nullity and the appeals were heard on 14th July 1966 by the Supreme Court which gave judgment on July 27th. The Supreme Court set aside the decision of 14th January 1966 and referred the case back to the Regional Court for rehearing as regards the conviction for fraud under IB (1) (F. Widmann), the acquittal on the charge of fraudulent conversion under II (the Roth couple) and the sentence. The Regional Court’s decision was upheld as regards the conviction for fraud under count IA (78 purchasers) and the acquittal on the charge of fraud under count IB (2) (R. Schamberger). The judgment was drawn up and transmitted to the Linz Regional Court on 29th August 1966. On September 2nd, the case was referred to a different chamber of the Regional Court. 44. On application made by the prosecution on 9th September 1966 (Article 34, paragraph 2, first sub-paragraph, of the Code of Criminal Procedure), the Linz Regional Court decided, on September 14th, that the proceedings on the charges of fraud under count IB (1) (F. Widmann) and of fraudulent conversion under count II (the Roth couple) should be discontinued. Consequently, the only matter left outstanding was a decision on the sentence for the conviction of fraud under count IA (78 purchasers). Ringeisen was given notice that the further hearing before the Regional Court would be held on October 18th. 45. On 29th September 1966 and the days which followed, Ringeisen made numerous applications for transfer, joinder of the case to other criminal proceedings, review (Wiederaufnahme des Strafverfahrens) etc., which were all rejected by the Regional Court on 12th October and by the Court of Appeal on 16th November. 46. The rehearing of the case took place before the Linz Regional Court on 18th October 1966. In its judgment of the same day, the court first noted that, since the prosecution had also appealed against the sentence imposed on 14th January 1966, the prohibition against passing a more severe sentence (reformatio in pejus) did not apply. The court took into account certain extenuating circumstances: Ringeisen had no previous convictions, he had made restitution - although to a very small extent - for the loss caused and he affirmed he would do so for the remainder, though the court expressed a reservation about his sworn statement of assets (Offenbarungseid). On the other hand, the court pointed out that there were aggravating factors: the people who had suffered loss were not affluent and this had caused particular hardship, the offences had continued over a considerable period and the damage had been particularly high. Weighing the extenuating and aggravating circumstances against each other, the court concluded that it could not be said that the extenuating circumstances predominated within the meaning of Article 265a of the Code of Criminal Procedure with the result that the punishment had to remain within the limits fixed by Article 203 of the Criminal Code - five to ten years’ severe imprisonment - though it could be fixed at the minimum. The sentence was therefore fixed at five years’ severe imprisonment with the additional punishment of fasting and "sleeping hard" once every three months. The court reckoned as part of the sentence the time (5th August to 23rd December 1963 and 15th March 1965 to 18th October 1966) Ringeisen had spent in custody on remand. Ringeisen gave notice that he would lodge a plea of nullity and an appeal; he also made an application for transfer. Ringeisen lodged the plea of nullity and an appeal on 3rd November 1966. The case-files were submitted to the Supreme Court on 24th November but were returned to Linz from 21st February to 23rd March 1967 for the consideration of an application made by Ringeisen for provisional release (paragraph 76 below). 47. Subsequently, Ringeisen laid criminal charges for perversion of justice (Missbrauch der Amtsgewalt) against a presiding judge at the Supreme Court. On 26th June 1967, the Supreme Court was informed by the Vienna public prosecutor’s office that this matter would not be dealt with for the time being and on 30th June the Supreme Court fixed 5th October 1967 as the date for a hearing on the applicant’s appeal and plea of nullity. On 29th September 1967, Ringeisen made an application to the Supreme Court challenging the president and other judges of the chamber which was to decide on his appeal and plea of nullity; Ringeisen maintained that a preliminary investigation had been opened against the president before the Regional Court in Vienna for perversion of justice. By decision of 3rd October 1967, the Supreme Court cancelled the hearing fixed for 5th October and referred Ringeisen’s challenge to the competent chamber. Before that chamber could take a decision, the Regional Court of Vienna requested the case-files, on 20th October, in order to take a decision on an application made by Ringeisen that preliminary investigations should be opened against the president of the chamber of the Supreme Court dealing with the case. On 4th December 1967, the files were returned to the Supreme Court which, on December 19th, rejected the challenge of the judges. Subsequently, a new date for the hearing was fixed for 15th February 1968. On 8th February 1968, Ringeisen once more challenged the judges of the Supreme Court on the ground that a civil action for damages in the amount of about 50,000,000 AS was pending against the president of the chamber before the Regional Court in Vienna. The Supreme Court refused the challenge on 13th February. 48. On 15th February 1968, the Supreme Court dismissed an application made by Ringeisen to adjourn the hearing fixed for that day on the ground that certain files should be consulted in connection with these proceedings. On the same day, the Supreme Court, in a final judgment, dismissed the plea of nullity but reduced the sentence. In computing the sentence, the Supreme Court held that the reasons for mitigation predominated in substance if not in number and that it was therefore possible to apply Article 265a of the Code of Criminal Procedure; the sentence originally imposed in January 1966 had been appropriate to Ringeisen’s convictions at that time but account should be taken of the fact that the charge of defrauding F. Widmann had been abandoned later on; the sentence was therefore reduced to two years and nine months’ severe imprisonment with the additional punishments ordered by the court of first instance. On 24th April 1968, the Regional Court decided that the entire time Ringeisen had spent in detention on remand should be reckoned as part of the sentence. B. The fraudulent bankruptcy case (19 Vr. 1566/64) 49. In August 1964, creditors laid criminal charges against Ringeisen; they accused him of unlawfully attempting to prevent them from obtaining execution of judgments awarded in their favour against him after it had become known that the sales of building sites could not be completed (paragraphs 16 and 20 above) and ordering him to refund the purchase money. On the application of the public prosecutor’s office at Linz, the investigating judge decided, on 31st August 1964, that preliminary investigations should be opened and conducted separately from those relating to the charges of fraud (19 Vr. 394/63) which were for the time being closed pursuant to Article 112 of the Code of Criminal Procedure (paragraph 32 above). Ringeisen was examined on 3rd September and then on 20th October by the investigating judge who later extended the preliminary investigation to cover further similar complaints made in the latter part of 1964 and early in 1965. 50. On 16th March 1965, the day after Ringeisen’s detention on remand was ordered in these proceedings (paragraph 61 below), he was brought before the investigating judge; he challenged that judge and all the other judges in the jurisdiction of the Linz Court of Appeal. The case-files were transmitted to the Supreme Court which dismissed the challenges on 1st April 1965. Further challenges of judges were refused in May 1965. 51. On the application of two creditors, the Linz District Court appointed, on 23rd March 1965, a receiver (Zwangsverwalter) over property owned by Ringeisen at Linz. 52. On 14th May 1965, Ringeisen was adjudged bankrupt (Eröffnung des Konkurses) by the Linz Regional Court. The principal effects of such a decision are set out in Section 1, sub-sections (1) and (2), of the Bankruptcy Act (Konkursordnung): "(1) The effect of the commencement of bankruptcy is to remove all assets liable to execution which belong to the bankrupt at the time or which accrue to him during the bankruptcy (the bankrupt’s estate) from his free disposition. ... (2) The bankrupt’s estate shall be taken in charge and administered in accordance with this Act and shall be employed for the joint satisfaction of those personal creditors who had pecuniary claims against the bankrupt at the commencement of bankruptcy (the bankruptcy creditors).   ..... ." In application of Sections 75 to 77 of the same Act, notice of the adjudication was given to a series of authorities at Linz, including various courts, the revenue office, the social security office, the central railway station, the freight station, the Danube navigation company, the post and telegraph office, the Bar association, the chamber of commerce, etc. A notice was put in the local official gazette (Amtliche Linzer-Zeitung). The assignee was appointed by the court on the same day. 53. The indictment was filed on 24th March 1966 with the Regional Court at Linz and notified to Ringeisen on the following day. Ringeisen was accused of having committed fraudulent