BÖHLER proti Rakousku



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)