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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Dr. X. v. AUSTRIA - 2278/64 [1967] ECHR 5 (30 May 1967) URL: http://www.bailii.org/eu/cases/ECHR/1967/2278_64.html Cite as: [1967] ECHR 5

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THE FACTS

Whereas the facts presented by the Parties may be summarised as
follows:

The Applicant is an Austrian citizen, born in 1929 and living at
Innsbruck. He complains of the duration of certain criminal proceedings
against him before the Austrian courts and of the length of his
detention pending trial. The details of these proceedings are as
follows:

I. In 1961 the Applicant was suspected of having instigated a certain
Dr. Y to organise with Italian nationals a course on explosives and of
having ordered dynamite for the purpose of committing acts of terrorism
abroad. A criminal investigation (Voruntersuchung) against him and
other persons was opened by the Regional Court (Landesgericht) of Graz
and, on .. August, 1961, the Applicant was arrested on suspicion of
having committed crimes under Articles 5 and 6 of the Explosives Act
(Sprengstoffgesetz) and Article 5 of the Criminal Code (Strafgesetz).
The warrant for his arrest was based on Article 175, paragraph (1),
Nos. 2, 3 and 4, and Article 180 of the Code of Criminal Procedure
(Strafprozessordnung). Article 175, paragraph (1) states as follows:

"(1) The investigating judge may, even without previous summons, order
a person suspected of a crime (Verbrechen) or misdemeanour (Vergehen)
to be brought before him and to be taken into temporary custody where:

1. ...
2. the suspected person has made preparations to abscond or where, by
reasons of the severity of his respective sentence, his itinerant way
of life or because he is unknown in the neighbourhood, homeless or
without papers, or for any other good reason, it appears likely that
he will abscond;
3. the suspected person has attempted to influence witnesses, experts
or other accused in a manner likely to prevent the ascertainment of the
facts or otherwise to hinder the investigation by destroying traces of
the crime or misdemeanour, or where there are good grounds to fear that
this might occur;
4. particular circumstances justify the fear that the accused will
repeat a completed action or carry out an attempted or threatened
action."
On .. October, 1961, the Applicant filed a petition for release from
detention on a solemn undertaking pursuant to Article 191 of the Code
of Criminal Procedure. This petition was refused by the investigating
judge (Untersuchungsrichter) on .. October and, on appeal (Beschwerde),
by the Judges' Chamber (Ratskammer) of the Regional Court on ..
November, 1961. The Chamber noted that, on .. October, the
investigation had been extended to further offenses under the
Explosives Act and held that, especially in view of this extension of
the investigation, the risks of the Applicant's absconding and
committing further similar offenses continued to obtain as legal
reasons for his detention. The Applicant's further appeal from this
decision was dismissed by the Court of Appeal (Oberlandesgericht) of
Graz on .. December, 1961.
Following a second petition for release by the Applicant, the Judges'
Chamber found, on .. December, 1961, that there was no further danger
of his committing further offenses of the same nature and, on the same
day, the Applicant was released on parole and bail of 10,000 Austrian
Schillings under Articles 191 and 192 of the Code of Criminal
Procedure.
Before that date, and also subsequently, the volume of the proceedings
grew considerably as a result of the inclusion of several criminal
proceedings pending before other courts against the Applicant and a
great number of other persons for suspected planning and execution
abroad of plots involving explosives.

II. The Applicant was not brought to trial in 1962 and, in February,
1963, he absconded to Germany in order to escape his arrest in another
criminal case which was then pending before the Regional Court of
Innsbruck. In that case, he was suspected of having given refuge to
persons who moved explosives from Innsbruck to foreign countries as
well as of having himself stored explosives in his home. The Applicant
states that the criminal proceedings relating to these alleged offenses
were later discontinued.

III. On .. March, 1963, the Judges' Chamber of the Regional Court of
Graz declared forfeited the Applicant's bail in the proceedings
mentioned under I above on the ground that he had left his domicile in
Austria and remained abroad without the Court's permission. For the
same reason, the investigating judge of the Court, on .. March, 1963,
issued a new warrant of arrest and, on .. June, 1964, the Applicant was
re-arrested at Klagenfurt. His appeal against detention was dismissed
by the Judges' Chamber on .. July, 1964. The Chamber stated that, after
his return to Austria, the Applicant had lived there under a false name
and it confirmed the finding of the investigating judge that there was
a danger that the Applicant might, if released, again flee the country.

The investigation against the Applicant was extended to further
criminal offenses under the Explosives Act and the Arms Act
(Waffengesetz) and later on also to an offence of incitement to
disaffection (Aufwiegelung) under Article 300 of the Criminal Code. On
.. February, 1965, the Applicant was informed of the indictment
(Anklageschrift) lodged by the Public Prosecutor's Office
(Staatsanwaltschaft) of Graz in which he and another 21 persons were
charged with offenses under the Explosives Act. His objection
(Einspruch) to the indictment was overruled by the Court of Appeal on
.. April, 1965.
A petition for release filed by the Applicant was refused by the
investigating judge and, on appeal and further appeal, by the Judges'
Chamber on .. March and by the Court of Appeal on .. April, 1965.

IV. On .. May, 1965, the Applicant's trial (Hauptverhandlung) opened
before the Schöffengericht (a chamber composed of two judges and two
jurymen) of the Regional Court of Graz. Counsel for the defence moved
that the Schöffengericht should immediately declare itself incompetent
pursuant to Article 261 of the Code of Criminal Procedure on the ground
that the defendants were suspect of having joined in a conspiracy
within the meaning of Article 7 of the National Security Act
(Staatsschutzgesetz) and that consequently the case fell within the
competence of the Court of Assizes (Geschworenengericht). The
Schöffengericht dismissed this motion, holding that only after having
heard the evidence could it determine whether the acts imputed to the
defendants were of a political nature. At the same time the Court
refused a new petition for release filed by the Applicant.
After having heard all defendants and examined the evidence, the
Schöffengericht, by its judgment of .. May, 1965, declared itself
incompetent. The Court stated that it had come to the conclusion that
the defendants had joined in a conspiracy which served the purpose not
only of undertaking plots involving explosives but also of procuring,
in a clandestine and unlawful manner, ammunition and other material for
fighting and of keeping and distributing such material to the members
of their group acting as armed bands abroad. Therefore, the defendants
were under strong suspicion that, in addition to the crimes punishable
under the Explosives Act which formed the subject of the indictment,
they had committed an offence punishable under Article 10 of the
National Security Act, which, however, established the Court of Assizes
to be competent in accordance with Article 14 a of the Code of Criminal
Procedure.
The Schöffengericht deemed itself no longer competent to decide on a
petition for release submitted by the Applicant after the above
judgment had been pronounced.

V. On .. and .. June, 1965, further petitions for release were filed
by the Applicant and the Regional Court of Graz decided on .. June,
1965, that he should be released on parole and on furnishing bail of
200,000 Austrian Schillings. He was accordingly released on .. June,
1965.

VI. The Applicant's trial before the Court of Assizes of Graz opened
on .. September and lasted until .. October, 1965. The jurors
unanimously answered all of the main questions and secondary questions
(8) in the negative. On the basis of this verdict the Applicant was
acquitted of certain counts of the charge on .. October, 1965, in
accordance with Article 259, No. 3 of the Code of Criminal Procedure;
this judgment became final. Regarding the other charges the verdict was
suspended by a unanimous decision of the Schwurgerichtshof (the
professional judges of the Court of Assizes) under Article 334,
paragraph (1) of the Code of Criminal Procedure. According to this
rule, the Schwurgerichtshof may, where it holds unanimously that the
jurors passed an erroneous verdict on the main issue, suspend the
verdict and submit the case to the Supreme Court (Oberster Gerichtshof)
for reference to another Court of Assizes.
In respect of the counts on which the verdict was suspended, the
Supreme Court, on .. March, 1966, referred the case to the Court of
Assizes of Linz for a new trial pursuant to Article 334, paragraph (2),
of the Code of Criminal Procedure.

With regard to the duration of the above criminal proceedings against
him before the Austrian Courts and the length of his detention pending
trial, the Applicant now alleges violations of Article 5, paragraph (3)
and Article 6, paragraph (1) of the Convention. He submits that a
substantial delay in the proceedings was caused by the Office of the
Public Prosecutor which brought his case before the Schöffengericht
although that Court had no jurisdiction in the matter.

Proceedings before the Commission

I. On 14th December, 1966, the Commission decided to give notice, in
accordance with Rule 45, paragraph (3) (b) of its Rules of Procedure,
of the Application to the Respondent Government and to invite it to
submit its observations in writing on the admissibility of the
Application.

II. In its observations of 17th March, 1967, the Austrian Government
submitted that the Applicant's complaints under Articles 5 and 6 of the
Convention were inadmissible, in part, under Articles 26 and 27,
paragraph (3) for non-exhaustion of domestic remedies and, in any case,
as being manifestly ill-founded within the meaning of Article 27,
paragraph (2).

1. As to the alleged violation of Article 5, paragraph (3), the
Government pointed out that, during his first detention from .. August
until .. December, 1961, the Applicant did not lodge an appeal against
detention until .. October. During his second detention from .. June,
1964, until .. June, 1965, he failed to introduce a further appeal
against the decision given by the Judges' Chamber on .. July, 1964,
although such a remedy lay under Article 114, paragraph (1) of the Code
of Criminal Procedure.

2. With respect to the complaint under Article 5, paragraph (3), the
Government further submitted that the Applicant's case was very
voluminous and complicated. The great number of accused and of criminal
acts made the investigation very difficult. The case-file comprised ten
volumes containing altogether 5478 pages. In the Government's opinion,
further reasons for the length of the Applicant's detention were his
fleeing to another country, the host of his appeals against detention
and other petitions, and the fact that, after his first release, he
continued to commit criminal acts. In these circumstances, the
Applicant had been brought to trial "within a reasonable time" in
accordance with Article 5, paragraph (3), and it followed that this
part of the Application was manifestly ill-founded within the meaning
of Article 27, paragraph (2) of the Convention.

3. In respect of the alleged violation of Article 6, paragraph (1) of
the Convention, the Government submitted that a person could not be
regarded as being under a "criminal charge" ("accusation" in the French
text, "Anklage" in the German translation) within the meaning of that
provision until he had been formally arraigned. Reference was made in
this connection to the Commission's decisions on the admissibility of
Application No. 1216/61 (Collection of Decisions, Volume 11, pages 1
[5 - 6]) and Application No. 1545/62 (Yearbook of the European
Convention on Human Rights, Volume 5, pages 270 [276]) and to the usage
in English, French and Austrian criminal procedure.
In the opinion of the Government, it was therefore only when a formal
indictment (Anklage) within the meaning of Chapter XVI of the Austrian
Code of Criminal Procedure had been brought against him and become
legally valid (rechtskräftig), that a person in Austria had the right
to a judicial decision within a reasonable time under Article 6,
paragraph (1) of the Convention. It followed that, in the present case,
the starting point to be taken into consideration was .. April, 1965,
when the Applicant's objection lodged against his indictment was
overruled by the Court of Appeal of Graz. In the meanwhile, the charge
against him had twice been tried in judicial proceedings and decided
upon by a judgment. His third trial was expected to take place before
the Court of Assizes of Linz in May 1967.

With regard to the Applicant's complaint that a considerable delay in
the criminal proceedings against him was caused by the Public
Prosecutor's Office in that it brought his case before the
Schöffengericht although such court was not competent for the subject
matter, the Government made the following observations:

The Explosives Act had originally been deemed a purely political Act
and Article 13 of the Act established in principle the competence of
the Court of Assizes in regard to offenses punishable under Articles
4, 5, 6 and 8. However, this rule, which had already been invalidated
by the Code of Criminal Procedure Amendment Act of 1920, was finally
repealed by the Criminal Code Amendment Act of 1934. Thereafter, only
the acts enumerated in Article VI, No. 1 of the Introductory Act to the
Code of Criminal Procedure, later incorporated in Article 14 (a)
paragraph (1) of this Code, constituted clearly political offenses
coming within the exclusive competence of courts of assizes according
to Article 91, paragraph (2) of the Federal Constitution
(Bundes-Verfassungsgesetz). Criminal acts punishable under the
Explosives Act were not mentioned in this list. It followed that they
were not in themselves political offenses although, in the light of the
underlying motive or purpose, they might constitute such offenses. In
a decision of 1963, the Supreme Court accordingly ruled that in the
present legal situation the Schöffengerichte were competent to judge
alleged violations of the Explosives Act. In the Government's opinion,
the Applicant had not committed a clearly political offense. There were
no concrete clues pointing to a violation of Article 10 of the National
Security Act and this offence was therefore not included in the
indictment. When the Schöffengericht of Graz, by its decision of ..
May, 1965 dismissed the motion of counsel for the defence that it
should at once declare itself not competent, the Court subscribed to
the legal view set out above. The decision of non-competence which it
gave on .. May, 1965, left the general legal situation unchanged.
The Government concluded that, in the above circumstances, a
"reasonable time" within the meaning of Article 6, paragraph (1) of the
Convention had not been exceeded in the Applicant's case. It followed
that the remainder of the Application was also manifestly ill-founded.

III. In his reply of .. April, 1967, the Applicant maintained his
complaints under Articles 5 and 6 of the Convention.

1. He objected to the Government's observation that, in respect of the
alleged violation of Article 5, paragraph (3), he had failed to exhaust
the remedies available to him under Austrian law. He stated that an
appeal against detention lodged immediately after his first or second
arrest would have been unsuccessful as even his petitions for release
introduced at later stages of his first and his second detention were
rejected by the competent courts. The Applicant also submitted that he
failed to lodge premature appeals because he did not want to protract
the investigation unnecessarily. He considered that the Respondent
Government could not, on the one hand, reproach him for not having
taken his complaint concerning detention before every instance when it
alleged, on the other hand, that the length of this detention was due
to the large number of appeals filed by him.

2. In the Applicant's opinion, neither his complaint under Article 5,
paragraph (3), nor that under Article 6, paragraph (1), was manifestly
ill-founded as suggested by the Government. In this respect, he stated
that, after his second arrest on .. June, 1964, he was informed by the
investigating judge that the investigation was closed and that the file
had been finally sent to the Public Prosecutor's Office. It was clear
from Article 112 of the Austrian Code of Criminal Procedure that either
the Applicant should have been served with the indictment within 14
days or, in the absence of any grounds for further proceedings, the
case should have been closed. In fact, he did not receive the
indictment until .. February, 1965, that is to say three months after
the time-limit provided for by law, and then only after he had started
a total hunger strike which aroused considerable public interest.
Furthermore, he was indicted before the wrong court and this protracted
the whole case further. All the circumstances described by the
Schöffengericht in its ruling of lack ofjurisdiction were known to the
Public Prosecutor's Office from the beginning but were deliberately
ignored. Since the verdict of the Court of Assizes was set aside in
October 1965 a further 18 months had elapsed, so that even in this last
stage there had been unnecessary delay. The new trial was now to be
held between .. and .. May, 1967, before the Court of Assizes at Linz.
With regard to the period to be taken into consideration under Article
6, paragraph (1) of the Convention, the Applicant pointed out that
proceedings against him began with his arrest on .. August, 1961. Thus
they had already run for nearly six years, during which time, in
addition to his periodical detention pending trial, he had been
subjected to all kinds of other restrictions with regard both to the
exercise of his profession and to his freedom. Any attempt to deduce
from the wording of Article 6, paragraph (1) that, in criminal
proceedings, it applied only to persons who were already in possession
of the indictment was either to misunderstand the meaning of the
Convention or to twist its meaning to the exact opposite. For such a
limitation of this provision of "accused persons" would make it
possible for any State to subject a citizen to criminal investigation,
with all its disabilities, for an unlimited period; it would simply be
necessary for the Public Prosecutor's Office to delay delivery of the
indictment for as long as it chose as had happened in the present case.
In this connection the Applicant pointed out that throughout 1962, to
take one example, there was no significant action by either the
investigating judge or the Public Prosecutor's Office and, although the
investigation was for all practical purposes complete at the beginning
of that year, no indictment was preferred. This entailed the greatest
inconveniences for all the defendants concerned and it could not be the
intention of the Convention not to offer any protection against such
conduct. The Applicant concluded that the length of his detention and
of the proceedings against him originated not in any complexity of the
facts but in the political intentions of the prosecution which thought
to serve the higher interests of the State.
THE LAW

Whereas, with regard to the Applicant's complaint concerning the length
of his detention pending trial, Article 5, paragraph (3) (Art. 5-3) of
the Convention states that anyone arrested or detained in accordance
with paragraph (1) (c) of that Article (Art. 5-1-c) "shall be entitled
to trial within a reasonable time or to release pending trial from ..
August until .. December, 1961, and again from .. June, 1964 until ..
June, 1965;

Whereas the Commission has considered the question whether, for the
purpose of Article 5, paragraph (3) (Art. 5-3), the above two periods
of four months and one year respectively should be judged separately
or as a whole;

Whereas, further, with regard to the second period of detention, the
Commission has noted that it continued during the Applicant's trial
before the Schöffengericht of Graz and subsequently for one month
pending his trial before the Court of Assizes of Graz; whereas, in this
connection, the further question arises whether the period to be
considered under Article 5, paragraph (3) (Art. 5-3), of the Convention
ends at the date when the trial opens or continues until judgment is
passed by a court of first instance, or extends beyond that date until
the day of a final decision on appeal;

Whereas, however, the Commission does not feel called upon to decide
these questions in the present case as it finds that, even if the two
periods of the Applicant's detention, including the time between the
date of the opening of his trial before the Schöffengericht and the
date of his final release, were considered as a whole, there is in the
particular circumstances of the case no appearance of a violation of
Article 5, paragraph (3) (Art. 5-3) of the Convention;

Whereas, in this respect, the Commission recalls that, according to its
constant jurisprudence, the question whether a period of detention
pending trial is "reasonable" or not cannot be decided in abstracto but
must be determined in the light of the particular circumstances of each
case (see Application No. 2077/63, Yearbook of the European Convention
on Human Rights, Volume 7, pages 268 [276, 278], and Application No.
2516/65, Collection of Decisions of the Commission, Volume 20, pages
28 [35]);

Whereas, in the present case, the Commission has taken into account the
facts that the investigation was complicated because of the great
number of persons accused and of alleged offenses; that, after his
first release in 1961 on parole and bail, the Applicant fled the
country and, after later returning to Austria, lived there under a
false name; and that it does not appear that during his detention the
criminal proceedings against him were substantially prolonged through
the fault of the competent authorities;

Whereas, in view of all these circumstances, an examination of the case
does not disclose any appearance of a violation of Article 5, paragraph
(3) (Art. 5-3) of the Convention; whereas it follows that this part of
the Application is manifestly ill-founded within the meaning of Article
27, paragraph (2) (Art. 27-2) of the Convention;

Whereas, with regard to the Applicant's complaint concerning the
duration of the criminal proceedings against him, Article 6, paragraph
(1) (Art. 6-1) of the Convention states that, in the determination of
any criminal charge against him, everyone is entitled to a "hearing
within a reasonable time";

Whereas, in the opinion of the Respondent Government, the period of
"reasonable time" referred to in this provision does not begin until
the person concerned has been formally charged; and whereas, in support
of this view, the Government refers to the Commission's decisions on
the admissibility of Applications Nos. 1216/61 and 1545/62;

Whereas the Applicant objects to this interpretation of Article 6,
paragraph (1) (Art. 6-1) of the Convention; whereas he considers that
such a limitation of the scope of this provision would make it possible
for a Contracting State to subject a citizen to criminal investigation,
with all its disabilities, for an unlimited period, as it would simply
be necessary for the Public Prosecutor to delay delivery of the
indictment as long as he chose;

Whereas it is true that, in its decision on the admissibility of
Application No. 1216/61 (loc. cit. page 6), the Commission held that
a person against whom a criminal charge (öffentliche Klage) within the
meaning of the German Code of Criminal Procedure (Strafprozessordnung)
has not yet been brought is not a person "charged with a criminal
offense" within the meaning of Article 6, paragraph (3) (Art. 6-3) of
the Convention; and whereas, in its decision on the admissibility of
Application No. 1545/62 (loc. cit. page 276), the Commission stated
generally that the words "within a reasonable time" in Article 6,
paragraph (1) (Art. 6-1) "refer to the period that elapses between the
charge and sentence";

Whereas, however, in the case of Neumeister against Austria
(Application No. 1936/63) which is now pending before the European
Court of Human Rights, the Commission has again considered the question
at what stage the period of "reasonable time" referred to in Article
6, paragraph (1) (Art. 6-1) begins; whereas, in that case, it has
arrived at the general conclusion that the relevant stage is that "at
which the situation of the person concerned has been substantially
affected as a result of a suspicion against him"; and whereas, pending
a decision of the Court on this question, the Commission maintains the
opinion which it adopted in the Neumeister case;

Whereas it follows that, in the present case, the starting point taken
into account by the Commission for the purpose of deciding whether a
"reasonable time" within the meaning of Article 6, paragraph (1)
(Art. 6-1) has been exceeded is the date of the Applicant's first
arrest in the criminal proceedings against him, namely .. August, 1961;


Whereas the Commission has also considered the question whether the
requirement under Article 6, paragraph (1) (Art. 6-1) as to "reasonable
time" is satisfied where a trial is opened and the accused is heard by
a court of first instance within a reasonable time; alternatively,
whether it is necessary that during this time a judgment is given by
the court; or whether the period referred to in Article 6, paragraph
(1) (Art. 6-1) also includes any proceedings on appeal; whereas the
Commission does not feel called upon to decide this question in the
present case;

Whereas it finds that, even if the period of nearly six years which
elapsed between the Applicant's first arrest on .. August, 1961, and
the date of the Commission's present decision (30th May, 1967) were
fully taken into account, there is, in the particular circumstances of
the case, no appearance of a violation of Article 6, paragraph (1)
(Art. 6-1) of the Convention;

Whereas, in this respect, the Commission refers to the grounds set out
above in its finding regarding Article 5, paragraph (3) (Art. 5-3);

Whereas, in particular, the criminal proceedings against the Applicant
were substantially delayed by the fact that, in February 1963, he
absconded to Germany and that, after his return to Austria, he lived
there under a false name until he was re-arrested on .. June, 1964;
whereas, in the meanwhile, the charges against him have been tried in
judicial proceedings and decided upon by a judgment; and whereas he has
been finally acquitted of some of the charges;

Whereas it follows that the remainder of the Application is also
manifestly ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2) of the Convention.

Now therefore the Commission declares this Application inadmissible.