A. THE FACTS
The facts presented by the Parties and apparently not in dispute
between them may be summarised as follows:
The applicant is an Austrian citizen, born in 1914 and resident in
Vienna.
He is one of several persons, including Lothar Rafael and Fritz
Neumeister against whom criminal proceedings were instituted in Austria
for having frauded the exchequer by fraudulently obtaining, between the
years 1952 and 1958, reimbursement of turn-over tax to the extent of
several million schillings, such reimbursement being designed to
encourage exports.
Between 4 and 9 February 1959 the Internal Revenue Office (Finanzamt)
of Vienna I started investigations against the applicant and other on
the suspicion of having committed offenses under the Financial Criminal
Code (Finanzstrafgesetz). Subsequently, under these proceedings, the
applicant's premises were searched and the files and books of his
import-export business were seized.
On 11 August 1959, the Public Prosecutor's Office (Staatsanwaltschaft)
in Vienna made an application to the Regional Criminal Court
(Landesgericht für Strafsachen) in Vienna for the opening of
preliminary investigation (Voruntersuchung) against the applicant. It
considered that the applicant was strongly suspected of having
committed fraud (Betrug) by improperly obtaining the above
reimbursement with regard to the export of optical instruments and
textiles. On 17 August 1959 the Regional Court took a decision in
accordance with the prosecuting authority's application, and the
applicant was examined in respect of the above charge on 24 June 1960.
Subsequently the applicant went abroad, and on 10 February 1961 the
Investigating Judge (Untersuchungsrichter) Dr. L. made an order
(Steckbrief) to search for the applicant and arrest him.
The applicant was arrested on 13 February 1961 in Zürich and remanded
in custody.
On 21 February 1961, the Investigating Judge issued a warrant for the
applicant's arrest (Haftbefehl) on the ground that he was suspected of
having been an accomplice in an offence of misuse of official power
(Missbrauch der Amtsgewalt) within the meaning of Articles 5 and 101
of the Criminal Code (Strafgesetz), and of having committed fraud
within the meaning of Articles 197, 200 and 203 of the Criminal Code.
The Judge considered the fraud to consist in the obtaining of
reimbursements with regard to the export of certain running gears and
textiles, and the misuse of power in the attempt to bribe the competent
tax officer at Salzburg.
On 23 February 1961 the Austrian authorities made an application to the
Swiss Government for the extradition of the applicant.
On 28 February 1961, the Vienna Public Prosecutor's Office moved the
Regional Court to extend the preliminary investigation against the
applicant to cover also the alleged fraud with regard to export
reimbursements for gym-shoes, mole-skins and running gears and the
suspicion of having been involved in the misuse of official power as
an accomplice. The Court took a decision, in accordance with the
Prosecutor's request, on 1 March 1961.
On 26 May 1961, the applicant was released from detention pending
extradition by the Swiss authorities for reason of his bad health. The
applicant was rearrested in Switzerland on 23 January 1962 but released
once more on 16 March 1962. On 15 April 1962 the Swiss authorities
granted the Austrian Government's request for the extradition of the
applicant and on 27 September 1962 he was extradited to Austria.
The applicant was remanded in custody at the Vienna Regional Court
Hospital. He was examined again by the Investigating Judge on 19
October 1962 and on 22 October the Investigating Judge issued a
supplementary warrant of arrest against the applicant. Under this
warrant the applicant was suspected of having committed fraud (Articles
197 and 200 of the Criminal Code) in connection with the alleged
improper obtaining of export reimbursements for optical instruments,
cotton materials and again gym-shoes, mole-skins and ladies' blouses,
and also of defamation as well as having aided and abetted this offence
(Articles 5 and 209 of the Criminal Code).
In the course of the investigations, evidence was obtained in various
foreign countries, partly by means of rogatory commissions. For
example, requests for the examination of witnesses were addressed to
the Dutch, German, Italian and Swiss judicial authorities as well as
to those in the Duchy of Liechtenstein. As a result of these requests
evidence was obtained in the Federal Republic of Germany between 15
June and 4 July 1962, in Italy between 18 February 1962 and 2 July
1963, and in Liechtenstein between March 1963 and June 1964. The
Austrian authorities also communicated with the judicial authorities
in the United States of America and Canada as well as with those in
various countries in Central and South America, Africa and the Near
East.
The indictment against the applicant and nine others was submitted on
17 March 1964. The applicant was accused of the following offenses:
1. Fraud within the meaning of Articles 197, 200 and 203 of the
Criminal Code by improperly obtaining reimbursement for the sham export
of:
(a) leather shoes, mole-skins and ladies' blouses (point I/6 of the
indictment);
(b) running gears, between May and August 1956 (point I/7 of the
indictment);
(c) running gears, between August and October 1956 and again February
and June 1957 (point I/8a of the indictment);
(d) textiles, through the firm Benistex et al. (point I/8b of the
indictment);
(e) optical instruments (point I/9 of the indictment).
2. Attempted fraud, within the meaning of Articles 197, 200, 201
Nos. (a) and (d), 203, and 8 of the Criminal Code, by attempting
improperly to obtain reimbursement for the sham export of:
(a) textiles, concerning the firm Comtex - Centraco I Case (point
II/1 of the indictment);
(b) textiles, between August 1959 and March 1960 - Centraco II Case
(point II/2a of the indictment);
(c) textiles, between September and December 1959 - Centraco III Case
(point II/2b of the indictment);
(d) electric engines - Filektra Case (point II/3 of the indictment).
3. Attempt to aid and abet defamation within the meaning of Articles
9 and 209 of the Criminal Code (point V of the indictment).
On 16 August 1964 the Regional Criminal Court of Vienna took a decision
by which it provisionally discontinued, in accordance with Articles 34
(2) and 109 of the Code of Criminal Procedure, the proceedings against
the applicant for having been involved in the misuse of official power
as an accomplice. This charge had not been included in the indictment
but had apparently been made the subject of preliminary investigations
by decisions of 1 March 1961.
Similarly, on 28 September 1964, the same Court discontinued, in
accordance with Articles 34 (2) and 363 (1) of the Code of Criminal
Procedure the proceedings against the applicant for having made
defamatory remarks about a lawyer and Dr. Pittermann, then
Vice-Chancellor of Austria. This charge had also been included in the
indictment of 17 March 1964 but had apparently been made the subject
of preliminary investigations. In any event, the applicant had been
suspected of this offense as shown by the supplementary warrant of
arrest of 22 October 1962.
On 16 October 1964 the applicant was summoned by the Regional Criminal
Court of Vienna to appear for trial on 9 November 1964. It appears that
the applicant made an application for an adjournment of the hearing but
this was rejected by the said Regional Court on 28 October 1964.
Consequently, the trial started on 9 November 1964 but on 18 June 1965,
after 102 days of the hearing, the Regional Criminal Court of Vienna
postponed the completion thereof indefinitely so that the investigation
might be completed.
The Court also decided that the applicant should be released from
detention on remand and on 7 July 1965 the applicant was so released
after having given a solemn undertaking not to leave his place of
residence without authorization before final termination of the
proceedings against him, nor to conceal himself or do anything which
might impair the investigation of the case (Article 191 of the Code of
Criminal Procedure).
Subsequently, on 8 March 1966, the Regional Criminal Court of Vienna
decided that the proceedings against the applicant for fraud with
regard to obtaining export reimbursements for leather shoes,
mole-skins, etc., as set out under point I/6 of the indictment (point
1 (a) above), and for attempted fraud with regard to attempting to
obtain export reimbursements for textiles and electric engines, as set
out under points II/1, 2 (a) and 3 of the indictment (points 2 (a) to
(d) above) should be provisionally discontinued in accordance with
Articles 109, 227 and 34 (2) of the Code of Criminal Procedure.
On the other hand it appears that, insofar as the applicant had been
charged under point V of the indictment (point 3 above) with having
attempted to aid and abet defamation, the prosecuting authority in
Vienna decided to make these facts the subject of separate proceedings
and, on 22 February 1966, submitted an indictment in this respect. The
matter came before the Regional Criminal Court of Vienna on 13 March
1967 which, after a hearing that lasted eleven days, decided on 26
April 1967, that the applicant and his two co-accused (L. Rafael and
H. Fuchshuber) should be acquitted for lack of evidence against them.
The Vienna Public Prosecutor's Office lodged with the Supreme Court
(Oberster Gerichtshof) a plea of nullity (Nichtigkeitsbeschwerde)
against Rafael's acquittal only, but this plea was rejected on 5
February 1970.
Therefore, as far as the applicant was concerned, the charges on which,
by April 1967, he remained to be tried were fraud by improperly
obtaining export reimbursements for running gear, textiles and optical
instruments, as set out under points I/7, I/8 (a) and (b), and I/9 of
the indictment. The trial on these remaining charges opened on 4
December 1967 and continued for 81 days until 2 July 1968.
However, on 10 June 1968 the Regional Criminal Court of Vienna decided,
upon the application of the Public Prosecutor's Office, that two of the
charges against the applicant, namely those concerning the export of
textiles and of optical instruments, as set out under points 1/8 (b)
and I/9 of the indictment should be separated from the other charges.
Again, on 2 July 1968 the Court separated the proceedings on one of the
two remaining charges, namely that relating to the export of running
gears as set out under I/8 (a) of the indictment. These charges are
presently still pending before the Regional Criminal Court of Vienna.
On the other hand, on 2 July 1968 the Court convicted the applicant of
fraud with regard to the improper obtaining of reimbursements for the
sham export, between May and August 1956, of running gears, as set out
under point I/7 of the indictment of 14 March 1964. He was sentenced
on the same day to three years' severe imprisonment with the additional
penalty of "sleeping hard" (hartes Lager) once every three months.
The written judgment was communicated to the applicant's lawyer on 10
March 1969 and on 24 March 1969 the applicant lodged with the Supreme
Court a plea of nullity against his conviction and an appeal (Berufung)
against his sentence. In his plea of nullity (which comprised
altogether 80 typewritten pages) the applicant first criticised
generally the terms of the judgment and the manner in which it had been
drafted, as well as the fact that, under the relevant provision of the
Austrian Code of Criminal Procedure, he had only had two weeks to
submit his plea whereas it had taken the Court more than eight months
to prepare the judgment. In this connection the applicant also invoked
Article 6 (3) (b) of the Convention.
The applicant then stated his grounds of nullity and first relied on
Article 281 (1) Nos. 3 (and 4) of the Code of Criminal Procedure
alleging that the Court should not have taken certain evidence under
oath. He next challenged the Court's findings of fact invoking Article
281 (1), No. 5 of the Code of Criminal Procedure and pointing to
altogether 172 passages in the judgment where the Court's findings, in
his opinion, were either unclear or incomplete, or contradictory in
themselves, or based on insufficient reasoning, or contrary to the
contents of the case file.
Finally, relying on Article 281 (1), No. 4 of the Code of Criminal
Procedure and Article 6 (2) and (3) (b), (c), and (d) of the
Convention, the applicant criticised the Court's refusal to hear
certain evidence offered by him. He alleged that this deprived him of
his right to be presumed innocent until proved guilty, to obtain the
attendance of witnesses on his behalf on the same terms as those
against him and to have sufficient time for the preparation of his
defence. In this connection the applicant referred to the final pages
(pp. 344 to 367) of the judgment in which the Regional Criminal Court
of Vienna had given the reasons for its refusal to sustain 34
applications made by the applicant in his final pleadings, to hear
witnesses, and challenged these reasons.
On 16 June 1971 the Supreme Court rejected the plea of nullity insofar
as the applicant had alleged violations of procedural law. The decision
on the alleged violations of substantive law and on the appeal
concerning sentence is expected in October 1971.
B. COMPLAINTS
In his original submissions, consisting of six bound volumes of
altogether 1,004 typed pages, two folders containing some 260
documents, as well as various letters, copies of decisions and
applications, the applicant complained under Article 5 of the
Convention, of his detention pending trial and its length, and under
Article 6 of the Convention of the Court proceedings against him and
their length. He also made various allegations regarding his right to
respect for his private and family life and his correspondence under
Article 8, his right to freedom of thought, conscience and religion
under Article 9, his right to freedom of expression under Article 10,
his right to an effective remedy before a national authority under
Article 13, and his right to be free from inhuman treatment under
Article 3 of the Convention.
The applicant stated that his health and entire existence had been
destroyed by reason of his long detention on remand, the criminal
proceedings against him which resulted in one wrong conviction and
sentence, one acquittal and the discontinuing of various proceedings,
for the sole purpose of covering up for crimes committed by the
authorities, and the continuing limitations on his right of free
movement both in Austria and Switzerland.
C. PROCEEDINGS BEFORE THE COMMISSION
The Commission considered the application on 19 December 1970 and, by
partial decision, rejected all the applicant's complaints except that
under Article 6 (1) of the Convention relating to the length of the
criminal proceedings against him. It found that it had no competence
ratione personae to deal with complaints pending extradition as the
applicant was so detained in Switzerland and Switzerland was not a
Contracting Party to the Convention (Article 27, paragraph (2), of the
Convention); that with regard to the complaints concerning detention
pending trial in Austria the six months' time-limit provided for in
Article 26 had not been observed and that, with regard to the
applicant's complaints concerning an alleged refusal of compensation
for wrongful detention, the alleged deprival of his right to a fair
hearing by an independent and impartial tribunal in accordance with
Article 6 of the Convention, an alleged breach of his right to respect
for private and family life and his correspondence, or an alleged
inhuman treatment, domestic remedies had not been exhausted (Article
27 (3) of the Convention). The Commission further found that there was
no appearance of a violation of the Convention with regard to the
applicant's complaints concerning refusal on the part of the
prosecuting authorities to institute criminal proceedings against
judges or Government officials whom he had charged accordingly and in
this connection, his allegations under Article 13 of the Convention
were incompatible with its provisions ratione materiae (Article 27,
paragraph (2), of the Convention).
The Commission finally found that, with regard to the applicant's
complaint that the charges against him had not been determined within
a reasonable time as guaranteed by Article 6 (1) of the Convention, the
further examination of the case should be adjourned and the parties
should submit observations on the admissibility of this part of the
application in accordance with Rule 45, (3) (b) of the Commission's
Rules of Procedure.
Written submissions were obtained from the respondent Government on 16
March 1971 and the applicant submitted on 19 April 1971 his
observations in reply. In the meanwhile, on 1 April 1971, the
Commission had decided, upon the Government's request, to communicate
to them the complete submissions of the applicant; it had also decided
to invite the parties to make further explanations at an oral hearing.
The applicant had been granted legal aid for his representation at the
hearing.
At the beginning of the hearing which had been fixed to begin on 13
July 1971, the Agent of the respondent Government referred to various
passages in the applicant's written submissions and maintained that
these contained an abuse of the right of petition within the meaning
of Article 27, paragraph (2), of the Convention. He requested a
decision by the Commission on this point before continuing with the
case.
After hearing the applicant's representatives on this point, the
Commission deliberated and decided that the applicant should be
required to withdraw all statements, made in the six volumes of his
application and in his letters of 30 June 1970 and 19 April 1971;
(1) expressed in language which was offensive in itself, both as
regards those persons whom it concerned and others, or
(2) which allege misconduct by the Austrian authorities, e.g. judges
or officials, and are not relevant for the establishment of the facts
alleged under Article 6 (1) of the Convention.
The Commission also required that the applicant should express his
apologies and regret for such statements.
The applicant's representatives, acting on behalf of the applicant,
subsequently withdrew, in accordance with the Commission's decision,
all the statements in his written submissions described above and
expressed his apologies and regret therefor.
The respondent Government accepted this course of action and did not
pursue their objections under Article 27, paragraph (2), of the
Convention relating to an abuse by the applicant of his right of
petition.
At the same time, the Government contended, however, that as a result
of the withdrawal of the offensive and incriminating passages in the
applicant's written submissions, the application itself had lost its
substance.
In view of this allegation, the applicant's representative was invited
to restate the facts which in his opinion gave rise to his complaint
under Article 6 (1) of the Convention that the charges against him had
not been determined within a reasonable time.
D. SUBMISSIONS OF THE PARTIES
1. The applicant, in restating his case, referred to certain of the
criteria adopted by the Commission in its report on the Neumeister Case
in regard to Article 5 (3) of the Convention and related them to
Article 6 (1). In this connection he considered first the actual length
of the proceedings concerned.
He submitted that the period started between 4 and 9 February 1959 when
the financial authorities began investigations on the suspicion that
the applicant had committed offenses under the Financial Criminal Code.
These investigations had caused a search warrant to be issued against
the applicant on the basis of which all the business files and records
which were in the applicant's possession had been seized. This had the
effect that the applicant's business operations were stopped completely
and he was required to answer to criminal charges which were laid
against him and which were not finally determined to this day.
Consequently, the actual length of the proceedings was by now more than
twelve years and the end of the period was not foreseeable as even the
charges which had been discontinued could be taken up again at any
time.
The applicant then turned to the complexity and the extent of the
present case. He conceded that it was indeed a complex and voluminous
case, the files of which comprised 32 volumes at 1,000 pages each.
However, he could not be held responsible for the fact that the case
had become so voluminous, but this was rather the responsibility of the
investigation authorities.
Above all, the case against the applicant should have been separated
from that against the other accused persons, and also the charges
themselves should have been dealt with separately. In fact, this was
provided for in Article 57 of the Code of Criminal Procedure which
states that the competent court may decide upon an application or
proprio motu that criminal proceedings should be conducted separately
with regard to several charges or against several accused persons where
this appears suitable in order to avoid delays etc. The applicant
submitted that the judicial authorities prolonged the proceedings by
not applying this provision in his case at the stage of the
investigations.
In this connection the applicant referred to the judgment of the
European Court of Human Rights in the Neumeister Case (European Court
of Human Rights "Neumeister Case" judgment of 27 June 1968) but pointed
out that all the charges against Neumeister, except one, had been
different from those against him and that, consequently, it would have
been very easy to separate them. It was true that the European Court
of Human Rights had found no violation of Article 6 (1) in this respect
in its above judgment, but the facts were different in his case and,
furthermore, the proceedings against the present applicant had lasted
now for another four years since the Neumeister judgment had been
given.
The applicant further submitted that, at a later stage of the
proceedings against him, certain charges were provisionally
discontinued in accordance with Article 34 (2), Sec. 1 of the Code of
Criminal Procedure. Under Article 363 (1), Sec. 3 of the Code the
Public Prosecutor's Office may, however, continue the prosecution of
such discontinued charges within three months of the date on which one
or more of the remaining charged have been finally determined.
Consequently, it could not have prejudiced the prosecution's case
against the applicant, if this procedural step had been taken at an
early stage with regard to all the charges against him except that one
charge under which he and Neumeister had been accused together as being
accomplices.
The applicant then made further submissions with regard to the conduct
of his case by the authorities and courts. He alleged that the judges
concerned were not sufficiently specialised to deal with cases of this
sort and that, in particular, the methods adopted in the investigation
of the case caused the proceedings to grow to such an enormous extent
and make the whole matter rather obscure.
In this respect the applicant referred to the fact that, at the
beginning the criminal investigations were conducted by a tax officer,
Mr. Besau, and not by the Investigation Judge, Dr. Leonhardt. The
presence, during the investigations, of Mr. Besau, who was later at the
trial and the principal witness for the prosecution, was not only
improper under Articles 162 and 198 of the Code of Criminal Procedure
where it is stated that every witness or accused person is to be
examined by the Investigating Judge in the absence of the Public
Prosecutor or any other person who is not authorised by law to be
present. The fact that Mr. Besau conducted these investigations also
caused a certain duplication of the proceedings insofar as the
Investigating Judge was subsequently obliged himself to investigate and
ascertain the facts provisionally established by the tax investigator.
Furthermore, the investigations had been insufficient so that the court
had been required to adjourn the first trial in order to allow the
prosecution authorities to complete the investigations. As a
consequence of this it had been necessary to conduct three separate
trials before three different divisions of the Vienna Regional Court,
the first between 9 November 1964 and 17 June 1965, the second between
13 March 1967 and 26 April 1967, and the third between 4 December 1967
and 2 July 1968.
Moreover, there had been delays in the investigations by reason of the
fact that requests for examination of witnesses by rogatory commissions
had been made which were, in fact, not necessary and that there had
been long intervals in the examination of the accused persons. Thus,
the principal accused person, L. Rafael, had been questioned first on
22 December 1961 and then not again until 15 January 1963; similarly
there had been no interrogation of F. Neumeister between 12 July 1962
and 4 November 1963.
Finally, even the time limits expressly provided for in the Austrian
Code of Criminal Procedure had not been observed. Thus, under Article
210 of the Code, when the indictment has not been challenged by the
accused, the Investigating Judge must submit the case files to the
court of first instance which is obliged at once to fix a date for
trial. This rule had not been observed as it had taken months, after
the submission of the files, before the Regional Criminal Court had
fixed a date.
Similarly, under Article 270 (1) of the Code of Criminal Procedure, any
judgment must be completed and signed within three days. In the present
case this had taken eight months.
Finally, under Article 271 (4) of the Code stenographic notes must be
transferred into longhand record within 48 hours; but this rule was
never observed by the Austrian courts and in the applicant's case it
had taken months before the record had been completed, hence the delay
also in the completion of the judgment.
On the other hand, counsel for the defence was obliged to submit an
appeal or plea of nullity within a period of 14 days, otherwise the
case would be dismissed as being out of time (Articles 294 and 285 of
the Code of Criminal Procedure).
The applicant concluded that, even assuming that the case was very
complicated, voluminous and complex, the fact that the charges against
him had not been determined after more than twelve years amounted to
a breach of Article 6 (1) of the Convention.
2. The respondent Government first contended that, as a result of
the applicant's withdrawal of all the offensive and incriminating
statements in his previous written submissions, his application had
lost its substance. In fact, the applicant's original complaint about
the length of the criminal proceedings against him had been based on
allegations of misconduct amounting to criminal offenses on the part
of the Austrian authorities and courts. As these allegations had not
been withdrawn there was no longer any basis or ground for this
complaint. The above restatement of his case, therefore, constituted
a new complaint which in no way satisfied the procedural requirements
under the Convention.
The respondent Government then submitted that the applicant had failed
to exhaust the domestic remedies. The burden of proof was on him in
this respect, as had been established by the Commission's case law.
Consequently, the applicant could have challenged, under the Code of
Criminal Procedure, all the individual decisions or acts of the
investigating or trial judges of which he had complained. In that
respect, Article 13 of the Convention which requires that everyone
whose rights and freedoms as set forth in the Convention are violated
shall have an effective remedy before a national authority had been
observed in the Austrian legal system.
It was true that there was no special remedy with regard to the right
to a hearing within a reasonable time by a court. But any action or
inaction on the part of a judge or other judicial organ could have been
challenged by means of a hierarchical appeal
(Dienstaufsichtsbeschwerde) or, where damages have arisen, by means of
a complaint under the Official Liability Act (Amtshaftungsgesetz).
This, according to the Government, applied in particular to the
applicant's complaints regarding the failure to separate the
proceedings or to complete the judgment and the minutes of the hearing
within the time limits prescribed by the Code of Criminal Procedures
well as to the complaints concerning the investigations.
The respondent Government then made submissions concerning the period
involved in the present case. They contended that the starting date was
in August 1959 as it was only then that preliminary judicial
investigations had been introduced against the applicant. The
investigations made under the Financial Criminal Code could not be
taken into consideration because they related to a quite separate
procedure which was not the subject matter of the present application.
Furthermore, the end of the period was, in the Government's
submissions, 19 November 1964, being the date on which the first trial
opened. The Government referred to the text of Article 6 (1) of the
Convention and explained that this provisionally granted the right to
an accused person to receive a hearing (rechtliches Gehör) within a
reasonable time. This was achieved when the accused person was brought
before the tribunal competent to try his case and the period ended
there. The situation might be different when the court, acting in bad
faith, fixed a date for hearing in order to stop the running of the
period and then adjourned the case during a long period of time.
However, there was no indication that these special circumstances
prevailed in the present case. Consequently, the period which was under
examination in this case was the period from August 1959, being the
date of the opening of preliminary judicial investigations, to 19
November 1964, being the date of the opening of the first trial.
The Government then submitted that it was well possible that certain
acts by the investigating authorities and courts might have been
inconsistent with the provisions of the Code of Criminal Procedure but
either these inconsistencies had been unavoidable or they had no
influence on the length of the proceedings concerned.
Thus it was true that a hearing had not been fixed immediately after
the files had been submitted to the Regional Court, but a preparatory
period of 71/2 months must be considered as being reasonable in a case
which is as complex and difficult as the present case. Similarly, it
had been impossible to complete the judgment and the minutes within the
time limits envisaged by the Code in so voluminous a case as the
present. Moreover, the presence of a tax investigator during the
investigations could not have prolonged the proceedings and there was
certainly no proof of any duplication of the investigation proceedings
concerned. The fact that in the minutes reference had been made to
evidence given on a previous occasion could not be regarded as proof
for the allegation that the proceedings had been duplicated as this was
rather a normal process.
It is true that the adjournment of the trial for the completion of the
investigations caused a delay, but the reasons for this adjournment
were justified as was clear from the relevant court decisions. The
applicant himself had refused to make any statements between October
1962 and the first trial, and when he had finally given evidence the
statements by him had not always been true. Consequently, it was to a
large extent his own conduct that had required the court to adjourn the
trial.
As regards the length of the preliminary investigations the Government
submitted that this was to a considerable extent caused by the length
of the extradition proceedings and the manner in which the requests for
the taking of evidence abroad by rogatory commission had been dealt
with by the judicial authorities in those countries. Thus the request
for the applicant's extradition, made on 23 February 1961 had been
granted by the Swiss authorities only on 15 April 1962 and the
applicant had, in fact, been extradited only on 27 September 1962.
Similarly, the taking of evidence abroad had, in some cases, only been
accomplished nearly a year and a half after the request had been made
by the Austrian authorities.
Moreover, this whole process of obtaining evidence from abroad had been
extremely complicated and time consuming. For instance, it had been
necessary to follow the course of 160 railway carriages from Salzburg
through several European countries and to examine numerous witnesses
as well as railway and other records abroad, including several
non-European countries. The Austrian authorities had done everything
in their power to expedite these investigations, had repeatedly
reminded the foreign authorities of the urgency of the matter and had
even obtained the assistance of Interpol. In retrospect, perhaps,
certain of these steps might be considered as having been unnecessary,
but at the time that they were taken they had appeared fully justified.
The respondent Government then made submissions in regard to the
question of separation. They first pointed out that Article 57 of the
Code of Criminal Procedure which had been invoked by the applicant, was
the exception to the rule stated in Article 56 of the Code. Article 56
provided that, as a rule, the proceedings should be joined where
several charges are preferred against one person or where several
persons are charged with the same offence.
Apart from this, there had been separations as early as 1962, and again
in 1963 and in 1964. In fact, originally the investigations had been
conducted against 23 suspects but, in the end, only ten had been
charged with criminal offenses. It was true that the proceedings
relating to the Beinstex textiles had been discontinued in the
Neumeister Case already in 1964 whereas in the applicant's case they
had been separated only in 1968. The reason for this was the conduct
of the applicant who had originally refused to make any statements at
all and had made substantial applications for the taking of further
evidence only at the end of the second trial. Furthermore, it was
somewhat inconsistent on the part of the applicant to complaint on the
one hand that certain charges had not been separated and on the other
hand that they had been separated, as for instance the charges relating
to running gears (point I/8 of the indictment) where he had challenged
the lawfulness of the separation in his plea of nullity.
The respondent Government further explained that, in principle,
separation was not really in the interest of an accused person because
he is obliged to give evidence as a witness when he is no longer an
accused person, whereas he is otherwise entitled to refuse to make any
statement whatsoever.
The respondent Government finally raised the question whether in a case
where the proceedings relating to a particular charge have been
discontinued in accordance with Article 34 (2) of the Code of Criminal
Procedure the person could still be considered as being charged with
a criminal offense within the meaning of Article 6 of the Convention.
The Government submitted that this question related particularly to
those charges which had been discontinued in March 1966 but added that
it was not really relevant in support of their case as, in their
submissions the period under examination had terminated in November
1964.
The Government concluded that, in these circumstances, the applicant's
complaint, under Article 6 (1) of the Convention relating to the length
of the criminal proceedings against him, even assuming that it was at
all properly before the Commission at this stage, was inadmissible for
failure to exhaust domestic remedies and, in any event, as being
manifestly ill-founded.
3. The applicant replied by submitting first that his withdrawal of
the offensive and incriminating statements of his written submissions
could not possibly affect the substance of his complaint concerning the
length of the criminal proceedings against him. He points out that the
facts as they had been submitted by him remained; what he had presented
during the oral hearing was not a new application but simply the
restatement of the facts which, in his opinion, constituted a violation
of his right to a hearing within a reasonable time under Article 6 (1)
of the Convention. Moreover, the Commission had the power to examine
ex officio whether particular facts alleged constituted a violation of
the Convention and it was not necessary that the reasons which the
applicant had submitted in support of his allegations lead to this
conclusion, as long as the facts as such gave rise to a question in
this respect.
The applicant then made submissions with regard to the exhaustion of
remedies and contended that there had not been any effective remedies
at his disposal which he could have exhausted. In the first place the
complaint that the criminal charges against him had not been determined
within a reasonable time, constituted a complaint against a continuing
situation in respect of which no remedies are available under Austrian
law. The alleged violations of Austrian procedural law in the course
of the investigations which had only been raised by him in order to
show that, even under Austrian law, fixed time limits had been exceeded
in his case, had not been known to him at the time they were committed.
Consequently, it had not been possible for him to challenge these acts
by means of a hierarchical appeal at that time. Subsequently, after the
indictment had been filed, the Investigating Judge had no jurisdiction
any more. The orders of the trial judge could only be challenged by
means of a plea of nullity and an appeal and that had been done. On the
other hand, it would appear that by reason of the fact that no
immediate remedy was available against the orders or delays caused by
the trial judge, Article 13 of the Convention was not observed by the
Austrian legal system.
Moreover, a complaint under the Official Liability Act was not an
adequate remedy to expedite criminal proceedings. This procedure only
envisaged civil proceedings where damages have arisen as a result of
an unlawful act committed by the authorities in the execution of the
law. Besides, any deficiencies in the conduct of the investigation and
criminal proceedings had been removed in the course of the proceedings,
except the length as such.
The applicant then made submissions concerning his own conduct during
the proceedings. He explained that his refusal to make any statements
during the investigations and prior to the trial had been his reaction
to a demand on the part of the authorities to sign depositions which
in his opinion were not correct. He stated that such refusal was
permissible under Articles 199 and 200 of the Code of Criminal
Procedure.
Furthermore, he had requested an adjournment of the trial in 1964
because at that time he had not had sufficient opportunity to examine
the case file and prepare himself for his defence. As he had been ill
at the time and as only one copy of the file had been available for all
of the ten co-accused persons it had not been possible for him to
examine the file sufficiently in advance.
Similarly, it had been necessary for his counsel to make various
applications to examine further evidence on the last day of the second
trial as he had not known until that time what charges would be
determined at the trial and what charges would be separated.
As regards the separation, the applicant submitted that the effect of
discontinuing certain charges was not that the person concerned was no
longer charged with a criminal offence in this respect. Under Article
207 of the Code of Criminal Procedure a person is accused (Versetzung
in den Anklagestand) when the indictment is filed. This situation could
only be changed by means of a withdrawal either in accordance with
Article 227 or under Article 259, Sec. 2 of the Code. Neither of these
withdrawals having been made in the present case the applicant was
still charged with the criminal offenses set forth in the indictment,
although certain of these had subsequently been provisionally
discontinued and prosecution thereof might never be resumed.
The applicant finally submitted that, as regards the period under
examination, the proceedings under the Financial Criminal Code and
those under the Criminal Code constitute a unity. Consequently, the
period started on 4 February 1959 when the financial proceedings were
instituted against him. It still continues today.
In these circumstances the applicant submitted that his complaint under
Article 6 (1) of the Convention was both admissible and well founded.
THE LAW
1. The Commission first considered the respondent Government's
objection to the admissibility of the application on the ground that
it constituted an abuse of the right of petition within the meaning of
Article 27, paragraph (2) (Art. 27-2), of the Convention in that it
contained certain objectionable statements. Such statements either were
expressed in language which was offensive in itself or they alleged
misconduct by the Austrian authorities and were not relevant for the
establishment of the facts alleged under Article 6 (1) (Art. 6-1) of
the Convention.
The Commission noted that during the oral hearing the applicant had
withdrawn all such statements and had expressed his apologies. These
statements will thus be deemed to be struck out of the record. The
Commission further noted that the respondent Government had declared,
in view of the applicant's withdrawals and apology, that they did not
pursue their objection to admissibility on this ground.
In these circumstances the Commission finds that it is not necessary
to consider any further the question whether or not the application was
inadmissible under Article 27, paragraph (2) (Art. 27-2), of the
Convention as constituting an abuse of the right of petition.
2. The Commission next considered the question whether or not, as
a result of the withdrawal of the offensive and incriminating
statements in the applicant's written application, his application had,
in fact, lost its substance and whether his submissions at the oral
hearing constituted a new application which did not satisfy the formal
and procedural requirements under the Convention and the Commission's
Rules of Procedure.
The respondent Government had made allegations to this effect following
the applicant's withdrawal of the offensive and incriminating
statements made by him. The Government argued that the application had
been based solely on allegations that the Austrian authorities had
committed criminal offenses in the course of the investigations and
criminal proceedings against the applicant and, as these allegations
had subsequently been withdrawn, the entire application originally made
by him ad lost its substance. He had now restated his case and this
constituted a new application which did not satisfy the formal and
procedural requirements under the Convention and the Rules of
Procedure.
The applicant alleged in this respect that, in withdrawing the
statements concerned he had not intended to withdraw his entire
application. He had simply withdrawn statements considered
objectionable. This implied that the facts, as they had originally been
submitted by him, remained to be examined. Moreover, when restating his
case at the oral hearing he had in no way submitted a new application,
but had simply presented these facts again in terms which could not
lead to any further objection under Article 27, paragraph (2)
(Art. 27-2), of the Convention as constituting an abuse of the right
of petition.
The Commission first finds that it is not necessary, at this stage of
the proceedings on admissibility, to examine in detail the applicant's
written submissions in order to ascertain which of the statements made
by him shall be deemed to be struck out of the record. It suffices to
state that all those statements expressed in a language which is
offensive in itself or which allege misconduct by the authorities and
are not relevant for the establishment of the facts alleged under
Article 6 (1) (Art. 6-1) of the Convention shall be deemed to be struck
out.
In the Commission's opinion, this does not, however, affect the facts
of the case as they had originally been submitted by the applicant. It
is true that the respondent Government does not contend that the facts
of the case are not before the Commission. What the Government submits
is that the original application which was the subject matter of these
proceedings had been based exclusively on allegations that the Austrian
authorities had committed criminal offenses. This allegation had now
been withdrawn by the applicant leaving only an unfounded complaint
that Article 6 (1) (Art. 6-1) of the Convention had been violated. In
the Government's submissions, an unfounded complaint cannot constitute
an application under Article 25 (Art. 25) of the Convention, as an
applicant must submit reasons (Gründe) to show that his rights have
been violated.
However, in the Commission's opinion, this view of the respondent
Government is not supported by the provisions of the Convention or the
Rules of Procedure or otherwise. Under Article 25 (Art. 25) of the
Convention, the Commission may receive petitions from any person etc.
"claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in this Convention", and
Rule 41 of the Rules of Procedure of the Commission sets out the
elements that should be mentioned in an application. None of these
provisions requires that, in order to establish his case before the
Commission, an applicant should have to make, and even has to
substantiate, allegations of criminal acts or negligence on the part
of the Government. It suffices that he submits the facts of his case
and alleges that these facts amount, in his opinion, to a violation by
the respondent Government of rights set forth in the Convention. In
that case the Commission must decide, at the stage of admissibility,
whether or not the facts referred to it disclose an appearance of such
a violation; indeed, it may even consider ex officio whether violations
other than those which the applicant alleges have been disclosed.
In the present case the applicant has not withdrawn any of the facts
originally submitted by him, nor his allegations that these facts
amount to a violation by the Austrian Government of Article 6 (1)
(Art. 6-1) of the Convention. He has, however, withdrawn his
allegations qualifying the Government's conduct as amounting to
criminal offenses. Such allegations were quite irrelevant for the
establishment of the facts of his case, or for a determination by the
Commission of the issue of violation, and their withdrawal did not in
any way affect the substance of his complaint under Article 6 (1)
(Art. 6-1) of the Convention.
In these circumstances the Commission finds that it was, and still is,
called upon to examine whether or not, on the facts originally
submitted by the applicant his right to a hearing within a reasonable
time, as guaranteed by Article 6 (1) (Art. 6-1) of the Convention, has
been violated. The Commission does not find, therefore, that a
restatement of the facts by the applicant at the hearing amounted in
any way to a new application as was also suggested by the Government.
3. The Commission next considered the respondent Government's
objections under Article 26 (Art. 26) of the Convention. That provision
states:
"The Commission may only deal with a matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken."
(a) The respondent Government has submitted that, although there was
no special remedy under Austrian law with regard to the right to a
hearing by a court, within a reasonable time, it was possible to
challenge any action or inaction on the part of a judge or other
judicial organ by means of a hierarchical appeal
(Dienstaufsichtsbeschwerde) or, where damages have arisen by means of
a complaint under the Official Liability Act (Amtshaftungsgesetz). As
the applicant had relied, in his application, on numerous individual
incidents allegedly showing an undue prolongation of the criminal
proceedings against him, he should have availed himself of the above
remedies.
The applicant has alleged that there were no effective remedies at his
disposal under Austrian law and that those remedies that were available
had been employed by him. The applicant explained that during the
investigations he had not been aware of the procedural violations which
had actually occurred and that those violations which had arisen during
the trial and had been challenged in his plea of nullity and appeal to
the Supreme Court. Moreover, both the hierarchical appeal and the
complaint under the Official Liability Act were not designed to
expedite proceedings whose undue length was his only complaint before
the Commission at this stage.
The Commission refers in this respect, in particular, to its decision
on the admissibility of application No. 4459/70, Kaiser against
Austria. In that case the Commission had been called upon to examine
whether or not the two remedies mentioned above by the respondent
Government were, in fact, effective and sufficient remedies where the
applicant had complained that the provisions of Article 270 (1) of the
Code of Criminal Procedure, requiring the completion of the drafting
of the judgment within a period of three days, had not been observed
and that his right under Article 6 (1) (Art. 6-1) of the Convention had
therefore been violated. The Commission found that neither remedy was,
in the circumstances, an effective remedy to redress the situation of
which the applicant had complained, but concluded that, for other
reasons, the complaint was manifestly ill-founded.
In the present case the Commission comes to the same conclusion as
regards the question of exhaustion of domestic remedies. Having regard
to the hierarchical appeal, it finds that, even if that disciplinary
procedure constituted under Austrian law a remedy against certain
lapses in the administration of justice it was not, in the
circumstances of the present case, designed to redress the situation
of which the applicant complains, namely that the criminal charges
against him have not been determined within a reasonable time and that
this situation still continues.
In this connection the Commission had again due regard to the uncertain
position in which the applicant found himself at the time to the extent
that he was not fully aware of the procedural decisions taken against
him.
Moreover, an accused person could perhaps hardly be expected to start
such disciplinary procedure against a judge who will then proceed to
decide the question of his guilt and of the sentence to be imposed on
him.
Similarly, a complaint under the Official Liability Act is limited to
a claim for actual liquidated damages and is not designed to accelerate
criminal proceedings.
The Commission finds, therefore, that with regard to the applicant's
complaint under Article 6 (1) (Art. 6-1) of the Convention relating to
the length of the criminal proceedings against him, no effective
remedies within the meaning of Article 26 (Art. 26) of the Convention
was available to him under Austrian law.
The Commission further finds that it cannot decide upon the applicant's
complaint under Article 13 (Art. 13) of the Convention as that
provision is applicable only where the "rights and freedoms set forth
in the Convention are violated" and no such findings has been made or
is required at the present stage of the proceedings.
(b) Article 26 (Art. 26) of the Convention further requires that an
application to the Commission should be introduced not later than six
months after the final decision relating to the complaint concerned.
In this connection the Commission is called upon to examine what period
is under consideration in the present case.
The respondent Government has alleged that the criminal proceedings
against the applicant, which began in August 1959 with the opening of
preliminary investigations against him, ended on 9 November 1964 when
the first trial started before the Regional Criminal Court of Vienna.
The Government explained that, under Article 6 (1) (Art. 6-1) of the
Convention, the applicant was entitled to receive within a reasonable
time a "hearing" by a court. This simply required that the applicant
should be brought within a reasonable time before a court where he
should have an opportunity to defend his case, but it did not require
that the charges against him should be finally determined within a
reasonable time. The only exception would be where a court acted in bad
faith in fixing an early hearing in order to comply with this
requirement under Article 6 (1) (Art. 6-1) of the Convention and then
adjourned the hearing in order to complete the case against the accused
person concerned. However, there was no indication that this exception
would be applicable in the present case, so that the period under
examination had ended on 9 November 1964, being the date on which the
first trial opened.
The applicant had relied on the judgment of the European Court of Human
Rights in the Neumeister Case (European Court of Human Rights
"Neumeister Case" judgment of 27 June 1969, paragraph 19 of THE LAW)
which found that Article 6 (1) (Art. 6-1) of the Convention indicated
as the terminating date the judgment determining the charge, the period
thus lasting until conviction or acquittal, even if this decision was
reached on appeal. Since the appeal and plea of nullity made by him
were, at least partly, still pending before the Supreme Court the
period under examination in his case which had started in February 1959
with the opening of investigations by the financial authorities, is
still continuing.
The Commission considers that it is not necessary to determine, at this
stage of the proceedings before it, the exact dates at which the period
under examination in the present case, started or ended. What it must,
nevertheless, decide is whether or not the application has been lodged
within the six months' time-limit laid down in Article 26 (Art. 26).
The Commission finds that, with regard to the criminal charges, now
under consideration, the situation complained of by him continued in
February 1970, i.e. during the period of six months preceding 16 June
1970, being the date on which the application was lodged with the
Commission. In this connection, the Commission refers to its own
jurisprudence and to that of the European Court of Human Rights and
concludes that the application is not inadmissible for non-observance
of the six months' time-limit laid down in Article 26 (Art. 26) of the
Convention.
4. The Commission finally considered the question whether or not the
applicant's complaint under Article 6 (1) (Art. 6-1) of the Convention
relating to the length of the criminal proceedings against him was
manifestly ill-founded.
The applicant has alleged that the failure finally to determine certain
of the charges against him during a period of 121/2 years deprived him
of a hearing of his case within a reasonable time within the meaning
of that provision.
The respondent Government has here maintained that the case against the
applicant, which was as a whole extremely voluminous and complex, had
been handled by the Austrian authorities and courts with the greatest
possible speed and care. Those delays which had in fact occurred,
however, had been unavoidable or had been caused by the applicant's own
conduct.
The applicant conceded that his case was voluminous and complex but
maintained that this was the result of the manner in which it had been
conducted by the authorities and courts in Austria. In fact, on
numerous occasions the Austrian Code of Criminal Procedure had been
violated causing a protraction of the proceedings for which he himself
was in no way responsible.
Both the European Commission and Court of Human Rights have held
repeatedly that the reasonableness of the period within which a person
is entitled to a hearing of his case under Article 6 (1) (Art. 6-1) of
the Convention must not be assessed in abstracto but in the light of
the particular circumstances of the case concerned (see, for example,
the decision in the Neumeister, Wemhoff and Ringeisen Cases).
Article 27, paragraph (2) (Art. 27-2), of the Convention in requiring
the Commission to declare inadmissible any application from an
individual which it considers to be "manifestly ill-founded" does not
permit the Commission, at the stage of considering the admissibility,
to reject a complaint whose lack of foundation cannot be so described.
In the present case the Commission has carried out a preliminary
examination of the information and arguments submitted by the parties.
The Commission finds that the complaint made by the applicant under
Article 6 (1) (Art. 6-1) of the Convention is of such complexity that
its determination should depend upon an examination of its merits. It
follows that it cannot be regarded as manifestly ill-founded within the
meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention and
no other ground for declaring this part of the application inadmissible
has been found.
For these reasons the Commission,
Declares admissible and retains, without in any way prejudging the
merits of the case, the allegation made by the application in respect
of Article 6 (1) (Art. 6-1) of the Convention that, in the
determination of the criminal charges against him, he did not receive
a hearing within a reasonable time by a tribunal established by law.