CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF   Application No. 11968/86 by Helmut BÖHLER against Austria           The European Commission of Human Rights sitting in private on 7 May 1987, the following members being present:                       MM. G. SPERDUTI, Acting President                         J.A. FROWEIN                         F. ERMACORA                         G. JÖRUNDSSON                         G. TENEKIDES                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         H.G. SCHERMERS                         G. BATLINER                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr.   F. MARTINEZ                      Mr.   K. ROGGE, Head of Division acting as Secretary                    to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 10 January 1986 by Helmut BÖHLER against Austria and registered on 29 January 1986 under file No. 11968/86;           Having regard to:   -        the first report of May 1986 provided for in Rule 40 of the         Rules of Procedure of the Commission;   -        the Commission's decision of 8 July 1986 to bring the         application to the notice of the respondent Government and         invite them to submit written observations on the admissibility         and merits of the application;   -        the observations submitted by the respondent Government on         13 October 1986 and the reply submitted thereto by the the         applicant on 8 December 1986;   -        the second report of March 1987 provided for in Rule 40 of the         Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows:           The applicant, an Austrian citizen born in 1940, is an insurance employee currently detained in Salzburg prison.   Before the Commission he is represented by Mr.   G. Stanonik, a lawyer practising in Salzburg.           On 1 July 1980 the applicant was arrested on suspicion of fraud and remanded in custody.   Criminal proceedings were instituted against the applicant whereupon he was tried before the Salzburg Regional Court (Landesgericht).   The criminal file consisted of 13 volumes with more than 100 pages of expert opinions.   In addition, there were 30 volumes consisting of documentary evidence.   The trial (Hauptverhandlung) lasted five days, during which 30 witnesses were heard.   The minutes of the trial consisted of 357 pages.           On 16 November 1982, after a hearing at which the applicant was present, the court orally pronounced its judgment and mentioned the relevant reasons therefor.   In the judgment it convicted the applicant of 24 instances of fraud in amounts varying between 10,000 and 1,000,000 AS.   The applicant was also convicted of seven violations of the foreign exchange laws.   The Court sentenced the applicant to eight years' imprisonment, making allowance for the period of detention on remand.           In particular, according to the judgment the applicant had extricated from innocent interested persons a total of some 10 million AS between autumn 1979 and the end of 1980 under the pretence of a profitable investment bearing an interest rate of 17% to 35%.   However, a substantial part of the money had been transferred, apparently in the interest of the applicant, to the Federal Republic of Germany and Switzerland.           The written reasons (Ausfertigung) for the court's judgment were served upon the applicant on 28 August 1985.           After the judgment had been pronounced the applicant filed a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court (Oberster Gerichtshof) in which he complained that during the proceedings his objections to an expert and his various applications for the taking of evidence had not been considered.           During his detention on remand, the applicant filed an application for release on 19 May 1985, which was withdrawn by him on 4 June 1985 as he was unable to provide sufficient bail.   On 5 June 1985 he again applied for his release from detention on remand.   His application was granted by the Review Chamber (Ratskammer) of the Salzburg Regional Court (Landesgericht) on 17 July 1985.   The decision was confirmed by the Linz Court of Appeal (Oberlandesgericht) on 14 August 1985.   However, as the applicant was unable to furnish the bail of 2 million AS ordered by the Regional Court, he continued to remain in custody.           On 14 November 1985 the Supreme Court dismissed the applicant's plea of nullity as being unfounded.   The applicant also filed an appeal (Berufung) concerning the sentence whereupon on 19 December 1985 the Supreme Court reduced the applicant's sentence from eight to six years.     COMPLAINTS   1.       The applicant now complains under Article 6 para. 1 of the Convention that he did not receive the written reasons of the judgment of 16 November 1982 until on 28 August 1985.   The court proceedings had therefore not been concluded within a reasonable time in the sense of Article 6 para. 1.   This delay is also contrary to S.270 of the Code of Criminal Procedure   which states:           "Jedes Urteil muss binnen vierzehn Tagen vom Tage der         Verkündung schriftlich ausgefertigt und vom Vorsitzenden         sowie vom Schriftführer unterschrieben werden."           (Translation:)         "The written reasons for every judgment must be prepared         within fourteen days from the date of the pronouncement and         must be signed by the president as well as the reporter."           According to S.285 of the Code of Criminal Procedure a complainant is granted a period of fourteen days after the written judgment has been served in order to substantiate his plea of nullity.           The applicant submits that, if the Regional Court had acted promptly, he could have filed his plea of nullity much earlier.   He refers in this respect to the fact that his appeal to the Supreme Court eventually proved successful.   The delay could in any event not be justified by the complexity of the case since on the day of judgment the court had already reached its conclusion.   2.       The applicant also complains that he was detained on remand from 1 July 1980 until 19 December 1985 when the judgment of the Regional Court acquired legal force.   Despite his various applications to be released, he was thus not tried within a reasonable time or released pending trial in the sense of Article 5 para. 3.   If the purpose of this provision is to bring about a justification for detention, such justification was in his case prevented precisely by this inordinately lengthy period.   The applicant also contends that S.193 of the Code of Criminal Procedure is in its generality contrary to the Convention insofar as until 1983 it permitted detention on remand indefinitely after a person had formally been indicted, and since 1983 after the proceedings have begun (Hauptverhandlung).   The applicant submits that this lengthy period prevented him from applying in accordance with S.46 of the Austrian Criminal Code for a reduction of his prison sentence on account of good conduct.   Thus he could only file his application after five and a half years of his sentence of altogether six years had elapsed.   In view of the fact that the original sentence of eight years could have been reduced by half, he in fact lost one and a half years of his life on account of the unjustifiable delay caused by the Regional Court.     PROCEEDINGS BEFORE THE COMMISSION             The application was introduced on 10 January 1986 and registered on 29 January 1986.           On 8 July 1986 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit observations on its admissibility and merits pursuant to Rule 42 para. 2 (b) of the Rules of Procedure in respect of the complaints under Article 5 para. 3 concerning the duration of the applicant's detention on remand and under Article 6 para. 1 concerning the length of the proceedings.           The respondent Government's observations were submitted on 13 October 1986 and the reply thereto by the applicant on 8 December 1986.     SUBMISSIONS OF THE PARTIES     A.       The respondent Government     I.       The facts           The Government's submissions as to the facts have been summarised above in THE FACTS.   II.      Requirement under Article 26 of the Convention           The Government submit that in respect of the complaint under Article 6 para. 1 of the Convention, all domestic remedies were exhausted.           The same can also be said in respect of the complaints under Article 5 para. 3 of the Convention, since the applicant filed an application for release on 5 June 1985 which was granted, upon appeal, by the Linz Court of Appeal on 14 August 1985.   The Government submit that it could possibly be argued that the applicant has not exhausted domestic remedies in that he did not apply for release from detention on remand in the period between 16 November 1982, when judgment was pronounced, and 5 June 1985.   III.     Complaints under Article 6 para. 1 of the Convention   1.       To assess the reasonableness of the length of proceedings, it is the consistent case-law of the Convention organs to consider the complexity of the case as well as the conduct of the applicant and of the competent public authorities.           The present criminal case with its economic implications and connections with other countries is undoubtedly based on complex and far-reaching facts.   In this respect reference may be made to the number of criminal files, of days of hearings and of witnesses heard. Moreover, at the time of the pronouncement, it was not necessary for the judge to have prepared a draft version of the reasons.   In particular for the written reasons he must again study all files containing expert opinions, documentary evidence and the testimonies of witnesses so that no detail is overlooked and there is no contradiction to the statements.   Finally the judge must be able to submit a written judgment which will bear review by the appellate court.   2.       As far as the conduct of the applicant is concerned, it must be noted that he urged preparation of the written reasons only once, namely on 5 June 1985.   He also did not file a hierarchical appeal (Aufsichtsbeschwerde) under S.15 of the Code of Criminal Procedure.           As regards the conduct of the competent authority, the Government refer to the Guincho case in which the Court decided that delays could be justified if the courts were not able to cope with the sharply increasing number of cases (Eur.   Court H.R., judgment of 10 July 1984, Series A no. 81).   Such delays, however, would have to be kept as short as possible by the State.           In respect of the period of time from 1 January 1982 until 31 July 1985, the respective Court Department No. 20 was overburdened in that the number of finished cases per year never reached the total number of new cases of the year and of unfinished business of the last year.   In 1984, the competent judge Dr.   M had in addition to bring to an end two jury trials, and from 1 January to 31 July 1985 one jury trial.   On 4 June 1985, the staff tribunal (Personalsenat) of the Salzburg Regional Court decided not to allocate new cases to the judge in order to give him an opportunity to catch up on the backlog in judgments.           The question of the judge's overall responsibilities between 16 November 1982 and 6 August 1985 has been answered by the Government in detail.   From the submitted chart it appears that from 29 November to 29 December 1982 the judge Dr.   M was responsible, alone or together with associate judges or lay judges, for 33 hearings, for instance on 22 December 1982 for nine hearings.   Similarly, in 1983 he was responsible for 124 hearings, in 1984 for 277 hearings and in 1985 until 22 July for 151 hearings.   3.       As from the beginning of 1983, the supervisory administrative authority was constantly taking measures in respect of Dr.   M in order to enable him to complete the written reasons of the judgment of the present case.   Disciplinary proceedings were instituted against him, and on 4 March 1984 the Linz Court of Appeal as the disciplinary tribunal decided to impose on Dr.   M the administrative penalty of an admonition (Ermahnung) on account of the delays which had occurred. Thereafter Dr.   M still did not prepare the written reasons, and he tried to justify the delay with his excessive workload as well as with personal problems, namely his father's death and heart surgery undertaken on his son.   New disciplinary proceedings were then brought against the judge.   On 1 July 1986 the Linz Court of Appeal decided that he was to be barred from promotion for two years.   As the judge appealed against this measure it has so far not entered into effect.     4.       In view of the consistent practice of the European Court of Human Rights, according to which delays cannot entail responsibility of the State if the latter takes immediate and appropriate remedial action (cf. judgment of Zimmermann and Steiner of 13 July 1983, Series A no. 66), the Government submit that the delay that has occurred is a result of the complexity of the case and that the competent authorities took all possible measures to expedite the preparation of the written reasons of the judgment (exemption from new business; monitoring by the supervisory authority; disciplinary measures). However, considering the constitutionally ensured principle of the independence of judges, guaranteed by the rules of irremovability and freedom from transfer, as well as the resulting principle of the fixed allocation of work, delays may occur in the interest of the certainty of law as long as, in exceptional cases, judges who do not satisfy the requirements which they are expected to meet may be transferred within the framework of disciplinary proceedings.   Another judge can then be appointed as head of the department.           Realistically speaking, there is always the possibility that a certain judge is not able to cope with particularly complex proceedings.   In such a case, however, the State can be made responsible under the Convention only insofar as arrangements have to be made that lead to a written decision.   In the present case, this has been done as the above explanations show.   5.       The applicant incorrectly alleges that a violation of S.270(1) of the Code of Criminal Procedure constitutes a violation of Article 6 para. 1 of the Convention.   In a decision of the European Commission of Human Rights it was stated that a violation of S.270(1) of the Code of Criminal Procedure did not constitute a violation of Article 6 para. 1 of the Convention, even if the written reasons for the judgment were not available eight months after its pronouncement (No. 4459/79, Dec. 3.4.71, Collection 38 p. 44).   6.       The issue whether or not the delays were to the detriment of the applicant must be judged by taking all circumstances into consideration.   Thus, at the hearing on 16 November 1982 the judgment was pronounced publicly and the pertinent reasons were explained.   The fact that the judgment, the contents of which were already known to the applicant, was not put into written form had the sole consequence that the Supreme Court was not able immediately to decide on the appeals lodged by the applicant.   Nevertheless, he would in any case have had to serve the sentence.   Even if the first judge had issued the written judgment immediately, the Supreme Court would still not have reduced the sentence to less than six years.   However, the applicant did not have to serve more than six years.   The delay in the preparation of the written reasons was not therefore detrimental to the applicant.   7.       In this respect the Government submit that different criteria must be used for judging the reasonableness of the length of procedings before and after pronouncement of the judgment.   Before the judgment is pronounced, the accused is under the strain of not knowing whether he will be found guilty and if so what sentence will be imposed on him.   The right to a speedy conclusion of the proceedings under Article 6 para. 1 of the Convention serves especially to keep this strain on the accused within justifiable limits.   While in the present case, the oral pronouncement of the judgment did not completely eliminate this uncertainty, it was certainly reduced considerably.   The time of two and a half years required for the written reasons of the judgment did not put as great a strain on the applicant as a similarly long delay in the preparatory proceedings would have posed for an accused who was detained.           If the applicant submits that after having served two-thirds of his sentence, he was not released on probation because the judgment had not been motivated, he overlooks the fact that a criminal has no right to claim parole.   His release on probation would not have been granted if the first judge had given the written reasons of the judgment immediately.   In the present case, the applicant's request of 28 March 1986 was rejected by two courts which held that the purpose of the punishment is to deter the offender from further wrongdoing.   In particular, the applicant had already been granted in earlier proceedings the legal benefit (Rechtswohltat) of a reduction of sentence on probation as well as a release on probation.   However, this did not have a favourable effect on the applicant, who betrayed the trust put in him and continued to breach the law.           It is also for these reasons that the release on probation granted to the applicant in other proceedings before the Innsbruck Regional Court and before the Salzburg Regional Court had to be revoked, so that he currently has to serve a remainder of one year, 9 months and 28 days, the sentence ending on 29 April 1988.   IV.      Complaints under Article 5 para. 3 of the Convention   1.       It must first be noted that the applicant only filed one application for release which was eventually allowed.   Thus, after providing bail of 2 million AS, the applicant would have been released until the sentence had become final.   The Government cannot be blamed for the fact that he was unable to provide bail and therefore had to remain in prison.   It would also have been up to the applicant to file applications for release at an earlier stage.   2.       Article 5 para. 3 of the Convention permits the interpretation that the period to be assessed under this provision ends with the pronouncement of the judgment of the court of first instance.   The need to have a written judgment cannot be inferred from the law. Moreover, according to the consistent practice of the European Court of Human Rights, the period relevant under Article 5 para. 3 ends with the release from pre-trial detention or the pronouncement of the judgment of the court of first instance, which in the present case was on 16 November 1982.   However, the complexity of the case, the necessity to question numerous persons within the framework of mutual legal assistance, the extent of the punishment involved, the strong suspicion of a criminal act and the existing reasons for arrest, all these documents imply that a pre-trial detention of two years (1 July 1980 until 16 November 1982) cannot be considered as unreasonably long.   Up to the pronouncement of the judgment, the domestic judicial authorities dealt with the matter expeditiously.   Therefore, the Convention has also not been violated in this respect.   3.       As regards the applicant's allegation of a violation of S.194 of the Code of Criminal Procedure, (recte: S.193(2), last sentence, of the Code of Criminal Procedure as applicable until 1983, and S.193(5) of the Code as amended by the 1983 Criminal Procedure Modification Act), the Convention contains no requirement concerning an absolute time-limit for detention on remand.   A statutory regulation which nevertheless makes provision for such a detention time-limit cannot therefore be in contravention of Article 5 para. 3 of the Convention, as it makes the end of this time-limit dependent on a certain stage of the proceedings (i.e. legal effect of the charge, start of the main hearing).           Under S.193(2), last half sentence, of the Code of Criminal Procedure, the reasonableness of the length of the detention on remand must also be checked particularly under the aspect of the principle of proportionality namely as to whether or not the duration is reasonable in relation to the expected sentences.   In the case of obvious unreasonableness, detention must be terminated.   Before the judgment is taken, the reasonableness and the proportionality of detention on remand and the expected sentence must be viewed in particular in the light of the penalty in question, the severity of the offence and the personal circumstances of the accused, namely his criminal record.   In the light of the above, it therefore emerges that the applicant's detention on remand was not unreasonably long.   V.       Conclusions           In the Government's opinion the complaints under Articles 5 para. 3 and 6 para. 1 of the Convention are manifestly ill-founded. The above explanations also clearly rule out a violation of the Convention on the relevant points of the merits of the case.     B.     The applicant     I.       The facts           The applicant's submissions as to the facts have been summarised above in THE FACTS.           As regards the Government's submissions concerning the activities of Dr.   M, the disciplinary sanctions imposed on him, and his being relieved from new cases, the applicant does not generally admit that the Government's version is the correct one.   Rather the Government should prove its account of the facts insofar as they are legally relevant.   II.      Complaints under Article 6 para. 1 of the Convention           In the domestic proceedings the applicant was confronted with indifference and negligence.   It was regarded as excusable, normal and not contrary to the Convention to keep a person waiting for 2 1/2 years for the written copy of a judgment which had already been pronounced, although, according to domestic law, a reasoned decision was a necessary condition for an appeal.           S.270 of the Austrian Code of Criminal Procedure provides that a written copy of every judgment must be prepared within 14 days of its pronouncement.   Thus, the legislative organs of the Republic of Austria considered it perfectly reasonable that a written copy of every judgment shall be prepared within the prescribed period.   It cannot therefore be argued that the length in the present case was justified on the ground that the proceedings were complicated.   It is beside the point that S.270 has been in force for more than 100 years, since the legislative organs were always free to modify this provision.           Sound reasoning lies behind S.270.   When the court reaches its decision after deliberation, the judgment is given in open court and the procedure by which the court reaches its opinion is therefore complete.   The judgment already represents the opinion of the court. It cannot be assumed that the court did not take account of all the circumstances coming to light in the course of the proceedings in the reasons for its judgment.           Thus, the Supreme Court dismissed the applicant's plea of nullity as it assumed that all grounds had been taken into consideration.   Indeed, the President of the Court read out the judgment with the essential reasons.   He must therefore at the time have been fully aware of the reasons for the judgment.   In fact after pronouncement of the judgment the judge has nothing more to examine. He must merely prepare the judgment in accordance with the reasons arrived at in the deliberations of the court when reaching its judgment.   Possibly the President should be granted a period of a few days in order to choose suitable wording or include cross-references in the reasons.   But he cannot be given more time than what he requires for correcting the drafting.   Any other solution would mean that the judge in fact alone produced the reasons for the judgment and that the other judges (a professional judge and two lay assessors) did not really participate in reaching the decision of the court.           The complexity of the case might justify a long trial and consequently a longer period of detention on remand up to the end of the trial.   If, however, the trial is conducted conscientiously and completely, this serves the exclusive purpose of establishing the truth.   For this very reason the Code of Criminal Procedure, which is based on a strict concentration of proceedings and on a direct and immediate connection between the taking of evidence and the reaching of the judgment, requires that the judgment shall be delivered in the course of the same trial proceedings.   If a trial is interrupted it must be recommenced from the beginning.   Consequently the entire proceedings must take place continuously before the court.   There is therefore no difficulty in preparing a written judgment within 14 days as required by S.270.           The period to be taken into account in assessing whether the length of the proceedings was reasonable within the meaning of Article 6 para. 1 runs up to the time when the judgment becomes final. Therefore, the time required in the present case is no longer reasonable within the meaning of Article 6 para. 1, particularly since an appeal to the Supreme Court can only be entered after the written reasons of the judgment have been prepared.           As regards the case-load before Court Department No. 20, the number of new cases was in no way unusual or higher than in other departments.   Such a long time for preparing the written copy of an oral judgment is unique.   Other judges have even more complicated cases to deal with, in which the preparation of the written reasons did not take so long.           Dr.   M in particular has considerable arrears and, as the applicant points out in respect of another case not before the Commission, he is clearly not in a position to cope with his work.   For instance, another judge, Dr.   G, of Department No. 15, has as much work to get through and yet has no arrears.   The applicant therefore asks the Commission to request the Government to provide a statement on the number of judgments Dr.   M has given for which he has not provided written copies and how long on average he required to produce the written judgment.           The measures taken by the Government in the present case were inadequate and irrelevant.   Clearly, only in 1984 did the authorities find it necessary to punish Dr.   M with one of the mildest disciplinary sanctions for unlawfully failing for almost two years to prepare the written reasons.   In 1985, no similar measures were taken.   In 1986, a disciplinary sanction was again pronounced against Dr.   M which was irrelevant for the present case.   In fact, the Government had at its disposal much more effective measures to remedy the situation.   For instance, S.104 of the Judicial Service Act (Richterdienstgesetz) provides for the disciplinary sanctions of reprimand, cancelling increments, reduction of salary, transfer to another post without transfer allowances, retirement on reduced pension and dismissal.   In fact, the Government only imposed the two mildest disciplinary sanctions, and only the sanction of a reprimand was imposed before the written reasons were prepared.   Under Section 51 of the Judicial Service Act the staff senate of the competent court must prepare an official report every year on each judge's work.   In the reports on Dr.   M there is no mention between 1982 and 1985 that his work was unsatisfactory and that he was not even able to produce the written reasons of judgments which had already been pronounced.   In this respect the applicant also asks the Commission to request the Government to submit the relevant reports on Dr.   M in order to demonstrate that in fact nothing was done to remedy the situation.           In fact, the intake of new cases should have been stopped.   It would have been quite easy to transfer Dr.   M in the years 1983-1985 to another division and in particular to employ him as an investigating judge since this function involves much less work.           In Austria, a judge is not subject to directions but is on the other hand part of the executive of the Government and performs executive duties.   It is incomprehensible that such an officer should not be identified with the Government in his actions.   In the present case, Dr.   M was in the executive organ of the Government.   In any event, the present application is justified since the Government have provided no legislative measures as to how a judge is to be forced to perform his duty in the relevant case or to ensure action in accordance with the Convention.   It follows therefore that the argument by which the Government is seeking to excuse itself is not relevant, particularly as Dr.   M represented the Government at this time and in this case.           The Government have stated as a precedent for the proper time to prepare the written reasons only one case in which the time required was eight months.   It is possible that eight months in fact do not yet fall within the ambit of Article 6 para. 1 but more than 2 1/2 years certainly do.   It cannot also be argued that after the pronouncement of the judgment the procedural guarantees required by Article 6 para. 1 need not be so strictly applied and were sufficiently complied with in the present case since the accused had already learned of his conviction and his nervous tension was not so great.   In particular, the judgment at first instance may be incorrect.   Moreover, Article 6 para. 1 guarantees that the first instance proceedings shall be completed in a reasonable time.   III.     Complaints under Article 5 para. 3 of the Convention           This provision is not intended in combination with Article 5 para. 1 (c) to guarantee that detention on remand shall be set off against a sentence of imprisonment.   Its object is rather to limit restrictions on a person's freedom by detention on remand before being sentenced to imprisonment as provided for by domestic law, and, in any event, to ensure that this detention without a final sentence is not longer than necessary.   The concept of a "conviction" can accordingly only be understood within the meaning of this provision as a final, enforceable decision which finally determines the charge.   Article 5 para. 3 is therefore in no way concerned with whether the applicant will possibly at a later stage have to serve a sentence which is just as long or perhaps longer.   This provision is also not concerned with whether the applicant suffered "damage".   Its object is rather to ensure that when the matter is not determined within a reasonable time the applicant has a right to be released from detention.   Of course, he may later receive a heavier sentence which he must duly serve.           Only after an application was made (an unnecessary condition according to the text of the Convention) on 17 July 1985 the Review Chamber decided that the applicant should be released on bail.   This release was ordered more than 2 1/2 years after the first instance judgment had been pronounced.   This period of time would have been far from complying with the concept of a reasonable time.   The Government are trying to present the situation as though two years of detention on remand was perfectly normal in the instant case.   That may be so but this period had already long been served when judgment was given at first instance.   In fact, the applicant had to undergo a further 2 1/2 years' detention on remand before being released on bail after judgment was given and in spite of the fact that the written reasons were not prepared.   That, however, cannot comply with the requirement of a conviction within a reasonable time.           In Article 5 para. 3 it is provided that release may also be conditioned by guarantees to appear for trial.   The above-cited decision of the Review Chamber discloses that bail was required on account of the danger of the accused absconding.   Appearance in court is no longer necessary at this stage of the proceedings.   The accused is free to decide whether he wants to appear in the proceedings concerning an appeal and a plea of nullity before the Supreme Court. Accordingly, bail can only apply to the execution of the sentence. But this is not covered by Article 5 para. 3.   The latter also does not require an application for release.   This right must be granted by the Government of their own motion as a matter of course.           Article 46(1) of the Austrian Criminal Code which provides for the remittance of sentence confers a right on the offender.   In their observations the Government seek to show that this is not correct. But doctrine and practice unanimously hold that there is a legal right to a conditional release.   It is also no longer retrospectively possible to reconstruct what the decision on conditional release would have been, if it had not been made only after the sentence had been reduced to six years.   Indeed it is by no means improbable that, if the sentence had been one of eight years, the decision would have been different.   Possibly it would also have been different, if Dr.   M's manner of proceeding had not in fact created a fait accompli.           The applicant opposes the Government's view that it does not contradict the Convention if, under Austrian law, detention on remand may be continued without limit when the indictment becomes final.   Of course, domestic legislation is also subject to the Convention.   If, therefore, the courts are bound by the provisions of domestic law to keep a person in detention for over 2 1/2 years it is obvious that the law on which such conduct rests is contrary to the Convention.   The Government have nothing to advance in their justification except that, according to their interpretation, Article 5 para. 3 of the Convention only provides protection until judgment is given at first instance. Anything else would be mere hair splitting and an unduly literal interpretation of the Convention.   The domestic legislature should therefore provide the necessary guarantees, for instance if the written reasons are not prepared within the 14-day period specified in S.270 of the Code of Criminal Procedure, that the accused must be released or that he must be released after a somewhat longer period. This would also be an effective means of ensuring that the judge sees to it that the written reasons are prepared within a period which ensures the observance of the Convention guarantees.   THE LAW   1.       The applicant complains that he did not receive the reasons for the judgment of 16 November 1982 until 28 August 1985.   If the Regional Court had acted promptly he could have filed his plea of nullity much earlier.   The delay which was also contrary to S.270 of the Code of Criminal Procedure could not be justified by the complexity of the case since on the day of the pronouncement of the judgment the Regional Court had already reached its conclusions.   As a result, the Court proceedings had not been concluded within a reasonable time in the sense of Article 6 para. 1 (Art. 6-1) of the Convention, the first sentence of which states:           "1.      In the determination of his civil rights and         obligations or of any criminal charge against him, everyone         is entitled to a fair and public hearing within a reasonable         time by an independent and impartial tribunal established by         law."           The Government point out that the delay in the preparation of the written reasons for the judgment is the result of the complexity of the case.   During the years 1982-1985 the Court Department responsible for the case was overworked.   Nevertheless, the supervisory administrative authority constantly took all possible measures in respect of the judge concerned in order to expedite the proceedings. In particular, on 4 March 1984 a disciplinary admonition was imposed on him, and on 1 July 1986 he was barred from promotion for two years. In any event, different criteria must be considered for judging the reasonableness of the length of the proceedings before and after the judgment.   In the present case, the oral pronouncement of the judgment considerably reduced the uncertainty and therefore the strain upon the applicant.           The Commission considers that the complaint concerning the length of the proceedings raises difficult questions of fact and law which are of such complexity that their determination should depend on an examination of the merits.   This part of the application is therefore not manifestly ill-founded and must be declared admissible, no other grounds for declaring it inadmissible having been established.   2.       The applicant also complains that he was detained on remand from 1 July 1980 until 19 December 1985 when the judgment of the Regional Court acquired legal force.   The applicant submits that this lengthy period prevented him from applying in accordance with S.46 of the Austrian Code of Criminal Procedure for a reduction of his prison sentence on account of good conduct.   Thus he could only file the respective applications after 5 1/2 years of his sentence of altogether six years had already lapsed.   The applicant contends that despite his various applications to be released he has not been tried within a reasonable time or released pending trial in the sense of Article 5 para. 3 (Art. 5-3) of the Convention which states:           "Everyone arrested or detained in accordance with the         provisions of paragraph 1 (c) of this Article shall be         brought promptly before a judge or other officer authorised         by law to exercise judicial power and shall be entitled to         trial within a reasonable time or to release pending trial.         Release may be conditioned by guarantees to appear for         trial."   a)       The Government submit in this respect that the applicant has complied with the condition of the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention, inasmuch as he filed an application for release on 5 June 1985 which was granted, upon appeal, by the Linz Court of Appeal on 14 August 1985.   However, it could possibly be argued that the applicant has not exhausted domestic remedies in that he did not apply for his release from detention on remand a short time after 16 November 1982, when the judgment was pronounced, but waited until 5 June 1985.           The Commission notes that on 5 June 1985 the applicant applied for his release from detention on remand.   His application was granted, upon appeal, by the Linz Court of Appeal on 14 August 1985. However, as the applicant was unable to provide as a condition for his release the required bail of 2 million AS he remained in custody.           The remedy employed by the applicant thus led to his release on condition of providing bail, though it did not lead to the applicant's actual release.   Moreover, only with the lapse of time did the length of detention itself become for the authorities concerned an increasingly important factor favouring the applicant's release from detention.   As a result, it cannot be assumed that an earlier application for release would have led to a different and more favourable result for the applicant.           The Commission is therefore satisfied that in respect of his complaint concerning the length of detention the applicant has exhausted domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   b)       The Government also submit in respect of the well-foundedness of the complaint that the applicant could have filed an application for release at an earlier date.   In any event, the relevant period under Article 5 para. 3 (Art. 5-3) ends with the release from pre-trial detention or the pronouncement of the judgment of the court of first instance which in the present case was 16 November 1982.   The Government contend that the length of detention up to that date cannot be regarded as unreasonably long in view of the complexity of the case, the necessity to question numerous persons within the framework of mutual legal assistance, the extent of the punishment involved, the strong suspicion of a criminal act and the existing reasons for arrest.           The Commission considers that the applicant's complaints concerning the length of his detention on remand raise questions of fact and law whose determination should depend on an examination of the merits.   This part of the application is therefore also not manifestly ill-founded and must be declared admissible, no other grounds for declaring it inadmissible having been established.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE without in any way         prejudging the merits of the case.     Head of Division acting as Secretary         to the Commission              Acting President of the Commission               (K. ROGGE)                           (G. SPERDUTI)