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07-15-2009, 12:27 AM
Ernst STÖGMÜLLER v. AUSTRIA - 1602/62 [1964] ECHR 10 (01 October 1964)
THE FACTSWhereas the facts of the case as submitted by the Parties may besummarised as follows:1. The Applicant is an Austrian citizen, born in 1934, and at presentliving in Vienna.In 1955 the Applicant was employed as an inspector with the "Heimat"Insurance Company in Vienna. While thus engaged, it appears that hebegan both on his own account and for the Company to negotiate loansto the company's clients and finally became a full-time and independentfinancial agent.On 10th January 1958 he founded the partnership business of Stögmüller& Co. Ltd. in association with two other persons. The company, whoseregistered office was in Linz, had an initial capital of 100,000,-schillings. Its activities consisted of transactions relating toproperty, including negotiating and advancing loans secured by landedproperty or otherwise, the administration of property againstremuneration, the negotiation of settlements in and out of court, aswell as a house agency and commission business. The Company alsocarried on the business of wholesale and retail trading in goods of allkinds, including in particular, importing and exporting. All threepartners were registered as directors, the company's business beingable to be transacted by any two of them. In practice, ErnstStögmüller, who owned 80 % of the capital stock, managed the businessalone and, in August 1959, the Applicant became sole director andtransferred the registered office from Linz to Vienna. On 14th August1961, the Applicant sold this company and since that date has not takenpart in any commercial activity.2. As early as 1954 information against the Applicant was repeatedlylaid before the Public Prosecutor's Office in Vienna and elsewhere bypersons who claimed they had been the victims of fraudulent, and laterusurious, business methods practised by Stögmüller as an insuranceagent, a second-hand car dealer and financial agent. The criminalproceedings instituted following these accusations were later suspendedin all but four cases or were concluded with the acquittal of theApplicant.In connection with a particular civil action brought by the "Heimat"Insurance Company before the District Court of Ferlach, the Judge feltobliged, in view of the disclosure of certain business practices of theApplicant, to communicate the facts of the case to the PublicProsecutor's Office. The consequent investigations resulted in thePublic Prosecutor's Office at Klagenfurt charging the Applicant withfraud on five counts under Sections 197, 200, 201 (d), 203 and 199 ofthe Penal Code.On 9th July 1959, the proceedings relating to these charges weretransferred at Stögmüller's request to the Regional Court of Viennawhich acquitted him on 15th June 1960. A plea of nullity lodged by thePublic Prosecutor's Office was then examined by the Supreme Courtwhich, by a decision of 31st January 1961, upheld the Regional Court'sjudgment on three of the counts and referred the case back to the Courtfor review of two charges. On 28th May 1963, the latter convicted theApplicant under Sections 197 and 199 (a) of the Penal Code before theDistrict Court of Vienna in respect of a charge of perjury committedon 12th December 1957. He was sentenced to five months imprisonment butwas acquitted on the other charges. He then entered a plea of nullityagainst his conviction, and this plea is still pending before theSupreme Court.3. On 5th December 1957, following the filing of numerous depositions,the District Court of Wels opened preliminary enquiries concerningfurther alleged offenses of fraud under Sections 197 and 200 of thePenal Code and later of usury under Section 2 (4) of the Usury Act(Wuchergesetz) and on 3rd March 1958 the Court remanded the Applicantin custody under Section 175 (3) and 180 (1) of the Code of CriminalProcedure. Following a request by Stögmüller on 15th March 1958, thecase was transferred to the Regional Court of Linz and, on 21st April1958, the Applicant was released on conditions.4. In June 1958, supplementary information, covering more than 2,000pages, was filed with the Public Prosecutor's Office in Linz allegingfraud, misappropriation of funds and profiteering by the Applicant andalso by a Dr. Ernst Standhartinger, a barrister. Stögmüller wasaccused, in particular, of having from 1957 onwards made a practice ofdemanding exorbitant security for loans from a large number of personswho were apparently in difficult financial circumstances and further,of having, alone or together with other persons, obtained money fromnumerous other persons by fraudulent practices and of havingmisappropriated capital entrusted to him.The investigating magistrate at the Regional Court of Linz had justbegun extensive enquiries when the Applicant submitted a request on rhOctober 1958 for the case to be transferred to the Regional Court ofVienna. Since the persons accused with him had agreed to this, the casewas duly transferred.After a study of the voluminous files, the examining magistrate inVienna decided to continue preliminary investigations into 31 chargesof misappropriation of funds, 21 charges of fraud and a further 21charges under Sections 2 and 3 (4) of the Usury Act. Enquiries weresubsequently extended to 12 other accusations and suspended on 8 more.On 10th February 1961, the Applicant, then at liberty, was informed onthese individual accusations.5. When the Applicant failed to appear at the hearing fixed for August1961, police enquiries established that he had flown to Greece in anaeroplane said to belong to his father. On his return, he wasre-arrested on thy August 1961 by a court order which had been made inview particularly of strong suspicions that he had committed freshoffenses after his release (Section 175, paragraph 1 (2) and (4) of theCode of Criminal Procedure).On thy October 1961, the Regional Court of Vienna, rejecting an appeallodged by the Applicant against his re-arrest, stated that officialenquiries had revealed that he had made several unauthorised journeyswithin Austria and abroad and that, in accordance with Section 191 ofthe Code of Criminal Procedure, his re-arrest had followed as thenatural consequence of his breach of the conditions upon which he hadbeen released. The Court further pointed out that, since Stögmüller hadin the meanwhile qualified as a pilot and had made frequent flightsabroad in an aeroplane belonging to his family, there was an obviousdanger that he might attempt to escape, particularly as the offensesimputed to him were punishable by a prison sentence of five to tenyears.As a further ground for rejecting the Applicant's appeal, the Courtreferred to the danger of recidivism as the Applicant had, since hisrelease in 1958, allegedly committed more offenses of the characterreferred to in Section 183, 197, et sen. and 205 (c) of the Penal Code.By a decision of 10th November 1961, the Court of Appeal of Viennadismissed Stögmüller's appeal against the decision of the RegionalCourt, having expressly taken into consideration the danger of hiscommitting further offenses. The Court did not, however, support thefinding of the lower court that the Applicant might attempt to escapefrom Austria.A further request by the Applicant for his release was rejected bydecision of the investigating magistrate on 3rd January 1962 on thesame ground, and the subsequent appeal lodged by Dr. Ada Tammy, theApplicant's counsel, was dismissed by the Regional Court of Vienna onthy January 1962. The Court of Appeal of Vienna upheld this decisionon 14th March 1962.6. Since the Applicant's attempts to secure his release wereunsuccessful, he then filed several applications and complaints. In anapplication of 31st October 1962, addressed to the President of theRegional Criminal Court of Vienna, he complained inter alia, that theexamining magistrate was deliberately protracting the proceedings,which had already been pending for five years, and that during his 14months' detention he had been heard on only three occasions. Thisapplication was dismissed. The Applicant then lodged a disciplinarycomplaint (Aufsichtsbeschwerde) which was also dismissed by the Courtof Appeal of Vienna in a decision of 23rd January 1963.In a further application of 7th November 1962, the Applicant challengedthe Court of Appeal of Vienna, and the courts of first instance withinits jurisdiction on grounds of partiality, alleging that one of thejudges in Vienna was also involved in the case and that Dr. ErnstStandhartinger, who was accused with him, was a close relative of aViennese judge. At the same time, he requested the transfer of his caseto the Regional Court of Salzburg.The Supreme Court, which was required to pronounce only on the issueof the alleged lack of impartiality of the Court of Appeal of Vienna,dismissed the Applicant's motion on 6th February 1963, having foundthat there were no grounds for fearing that the Court would allowitself to be influenced by other than purely objective considerations.On 27th February 1963, the Court of Appeal of Vienna rejected theApplicant's motion in respect of the courts of first instance on thegrounds that the judges named by the Applicant had nothing to do withthe Applicant's case and were in no way associated with the judgesconducting it and that, moreover, Dr. Ernst Standhartinger was not aclose relative of the Viennese judge of the same name. The Applicant'srequest for the transfer of his case was also rejected.An application by the Applicant to the Constitutional Court submittingthat the proceedings against him had already continued for five yearsand that, although he had been in custody for 18 months, there wereseveral matters on which he had not yet been heard, was dismissed bya decision of the Constitutional Court on 27th March 1963 on the groundthat it was not competent to examine appeals against court judgmentsor decisions or against the behaviour of judicial organs with regardto jurisdiction.7. On 26th August 1963 the Applicant was released on bail of 200,000Schillings. The investigation against him is still being continued andhe has not yet been formally charged.The submissions of the PartiesWhereas in his Application form, in his reply of 14th September 1963and at the oral hearing on 1st October 1964, the Applicant allegesviolations of:- Article 5, paragraph (1) (c) in that he was arrested and detainedwithout reasonable suspicion;- Article 5, paragraph (3) in that the investigation against him didnot necessitate his detention for periods totalling 2 years and 7weeks;- Article 6, paragraph (1) in that he has not been brought to trialwithin a reasonable time;- Article 6, paragraph (1) in that the examining magistrate does notcarry out the investigation against him in an impartial manner; -Article 6, paragraph (3) in that the investigating judge has refusedto hear certain witnesses for the defence;Whereas the Respondent Government has replied to these allegations inits written observations of 28th August and 9th December 1963 and atthe oral hearing on 1st October 1964;Whereas the submissions of the Parties on these various issues may besummarised as follows:In respect of the alleged violation of Article 5, paragraph (1) (c) ofthe ConventionThe Respondent Government submitted that the number of offenses imputedto the Applicant and investigated by the examining magistrate, Dr.Leonhard, gave rise to a strong suspicion that the Applicant was guiltyof offenses punishable by a prison sentence of five to ten years. Hisarrest and detention were therefore justified in the interests ofjustice. Furthermore, it could not be excluded that the Applicantwould, if remaining in liberty, have committed further offenses.The Government also gave details as to the accusations which in 1961and 1962 had warranted the rejection of the Applicant's two requestsfor release. It further contested the Applicant's statement that he hadreceived permission to leave Austria and submitted that his failure toappear at a hearing on 18th August 1961 constituted a breach of theconditions upon which he was released in 1958. In conclusion, itsubmitted that this allegation was manifestly ill-founded.The Applicant submitted that his arrest and detention were notjustified under the Convention. A denunciation, which has been neitherproved nor even investigated, cannot be a basis of "a reasonablesuspicion" within the meaning of Article 5, paragraph (1) (c). He addedthat he had been able to refute each accusation when called upon tomake a statement before the examining magistrate. The Austrian Courtshad attempted to justify his arrest and detention on the ground thathe might commit further offenses, but they had failed to take intoaccount that, prior to his second arrest on 25th August 1961, he hadsold his company and finally withdrawn from all commercial activities.As to his failure to attend the hearing on 18th August 1961, hesubmitted that, on receiving the summons, he asked his lawyer torequest an adjournment of the hearing to which the examiningmagistrate, Dr. Leonhard, agreed. He returned from his journey toGreece on 19th August 1961 and immediately reported his return to hislawyer and to Dr. Leonhard. Nevertheless, the latter issued less thana week later a warrant for the Applicant's arrest.He further submitted that he had a standing permission to travelabroad, the only restriction being that he left his address with hislawyer.In respect of the alleged violation of Article 5, paragraph (3) of theConventionThe Respondent Government submitted that a danger existed in 1961 thatthe Applicant might commit further offenses and that his detention wasthen necessary. In 1963, that is two years after he had wound up hisaffairs, no such danger existed and the Applicant could be released onbail.It further submitted that, according to the above provision of theConvention, an arrested person shall be entitled to trial within areasonable time or to release pending trial. As the Applicant wasreleased on 26th August 1963, it concluded that the alternativeprovision did not come into consideration and paragraph (3) had beenduly respected, and the Commission was barred from examining the lengthof the period during which the Applicant had been detained.In any event, the term "within a reasonable time" should be given aflexible interpretation in the light of the particular circumstancesof each case. A detention of the Applicant for a prolonged period wasnecessary in view of the extremely complex nature of the accusationslaid against him.The Applicant submitted that the above provision had been violated inthat he had not been brought to trial within a reasonable delay orreleased pending trial. The fact that he was released prior to trial,namely on 26th August 1963, did not bar the Commission from examiningwhether or not a period of detention totalling 2 years and 7 weeks wa***cessive. He pointed that the reasons which finally led to his releasein 1963 already existed and ought to have been accepted in 1961;indeed, prior to his arrest, he had on 14th August 1961 sold hiscompany and voluntarily detached himself from any commercial activitywhich, in the eyes of the Prosecution, might have tempted him to commitfurther offenses. In fact, the grounds on which his release was orderedcorresponded closely to those contained in his own requests for releasetwo years earlier.During the two years which he had spent in prison pending trial, he hadbeen heard by the examining magistrate on 13 occasions only, namely,on 26th August and 28th December 1961, 11th, 13th, 16th, 17th, 18th and23rd July 1962, 29th May, 18th June, 5th, 7th and 9th July 1963. Thesehearings related to only five accusations out of about 80 underinvestigation.During the year which has elapsed since his release he has been heardon 15 accusations. This tends to show that his detention was entirelysuperfluous and purposeless.In respect of the alleged violation of Article 6, paragraph (1) of theConvention in that the Applicant was not brought to trial within areasonable time.The Respondent Government submitted that the accusations against theApplicant were extraordinarily complex and difficult to investigate.It was not contested that the preliminary examination had begun in 1957and that it was difficult now, after almost seven years, to give anyprecise information as to when this investigation could be completed.It was, however, submitted that the term "reasonable time" should beinterpreted in relation to the special circumstance of each case. Thepresent case was extraordinary in that more than 80 differenttransactions had to be carefully examined and these transactions wereof a particularly complicated factual and legal character and in thatthe intransigent behaviour of the Applicant did not facilitate theirexamination.
THE FACTSWhereas the facts of the case as submitted by the Parties may besummarised as follows:1. The Applicant is an Austrian citizen, born in 1934, and at presentliving in Vienna.In 1955 the Applicant was employed as an inspector with the "Heimat"Insurance Company in Vienna. While thus engaged, it appears that hebegan both on his own account and for the Company to negotiate loansto the company's clients and finally became a full-time and independentfinancial agent.On 10th January 1958 he founded the partnership business of Stögmüller& Co. Ltd. in association with two other persons. The company, whoseregistered office was in Linz, had an initial capital of 100,000,-schillings. Its activities consisted of transactions relating toproperty, including negotiating and advancing loans secured by landedproperty or otherwise, the administration of property againstremuneration, the negotiation of settlements in and out of court, aswell as a house agency and commission business. The Company alsocarried on the business of wholesale and retail trading in goods of allkinds, including in particular, importing and exporting. All threepartners were registered as directors, the company's business beingable to be transacted by any two of them. In practice, ErnstStögmüller, who owned 80 % of the capital stock, managed the businessalone and, in August 1959, the Applicant became sole director andtransferred the registered office from Linz to Vienna. On 14th August1961, the Applicant sold this company and since that date has not takenpart in any commercial activity.2. As early as 1954 information against the Applicant was repeatedlylaid before the Public Prosecutor's Office in Vienna and elsewhere bypersons who claimed they had been the victims of fraudulent, and laterusurious, business methods practised by Stögmüller as an insuranceagent, a second-hand car dealer and financial agent. The criminalproceedings instituted following these accusations were later suspendedin all but four cases or were concluded with the acquittal of theApplicant.In connection with a particular civil action brought by the "Heimat"Insurance Company before the District Court of Ferlach, the Judge feltobliged, in view of the disclosure of certain business practices of theApplicant, to communicate the facts of the case to the PublicProsecutor's Office. The consequent investigations resulted in thePublic Prosecutor's Office at Klagenfurt charging the Applicant withfraud on five counts under Sections 197, 200, 201 (d), 203 and 199 ofthe Penal Code.On 9th July 1959, the proceedings relating to these charges weretransferred at Stögmüller's request to the Regional Court of Viennawhich acquitted him on 15th June 1960. A plea of nullity lodged by thePublic Prosecutor's Office was then examined by the Supreme Courtwhich, by a decision of 31st January 1961, upheld the Regional Court'sjudgment on three of the counts and referred the case back to the Courtfor review of two charges. On 28th May 1963, the latter convicted theApplicant under Sections 197 and 199 (a) of the Penal Code before theDistrict Court of Vienna in respect of a charge of perjury committedon 12th December 1957. He was sentenced to five months imprisonment butwas acquitted on the other charges. He then entered a plea of nullityagainst his conviction, and this plea is still pending before theSupreme Court.3. On 5th December 1957, following the filing of numerous depositions,the District Court of Wels opened preliminary enquiries concerningfurther alleged offenses of fraud under Sections 197 and 200 of thePenal Code and later of usury under Section 2 (4) of the Usury Act(Wuchergesetz) and on 3rd March 1958 the Court remanded the Applicantin custody under Section 175 (3) and 180 (1) of the Code of CriminalProcedure. Following a request by Stögmüller on 15th March 1958, thecase was transferred to the Regional Court of Linz and, on 21st April1958, the Applicant was released on conditions.4. In June 1958, supplementary information, covering more than 2,000pages, was filed with the Public Prosecutor's Office in Linz allegingfraud, misappropriation of funds and profiteering by the Applicant andalso by a Dr. Ernst Standhartinger, a barrister. Stögmüller wasaccused, in particular, of having from 1957 onwards made a practice ofdemanding exorbitant security for loans from a large number of personswho were apparently in difficult financial circumstances and further,of having, alone or together with other persons, obtained money fromnumerous other persons by fraudulent practices and of havingmisappropriated capital entrusted to him.The investigating magistrate at the Regional Court of Linz had justbegun extensive enquiries when the Applicant submitted a request on rhOctober 1958 for the case to be transferred to the Regional Court ofVienna. Since the persons accused with him had agreed to this, the casewas duly transferred.After a study of the voluminous files, the examining magistrate inVienna decided to continue preliminary investigations into 31 chargesof misappropriation of funds, 21 charges of fraud and a further 21charges under Sections 2 and 3 (4) of the Usury Act. Enquiries weresubsequently extended to 12 other accusations and suspended on 8 more.On 10th February 1961, the Applicant, then at liberty, was informed onthese individual accusations.5. When the Applicant failed to appear at the hearing fixed for August1961, police enquiries established that he had flown to Greece in anaeroplane said to belong to his father. On his return, he wasre-arrested on thy August 1961 by a court order which had been made inview particularly of strong suspicions that he had committed freshoffenses after his release (Section 175, paragraph 1 (2) and (4) of theCode of Criminal Procedure).On thy October 1961, the Regional Court of Vienna, rejecting an appeallodged by the Applicant against his re-arrest, stated that officialenquiries had revealed that he had made several unauthorised journeyswithin Austria and abroad and that, in accordance with Section 191 ofthe Code of Criminal Procedure, his re-arrest had followed as thenatural consequence of his breach of the conditions upon which he hadbeen released. The Court further pointed out that, since Stögmüller hadin the meanwhile qualified as a pilot and had made frequent flightsabroad in an aeroplane belonging to his family, there was an obviousdanger that he might attempt to escape, particularly as the offensesimputed to him were punishable by a prison sentence of five to tenyears.As a further ground for rejecting the Applicant's appeal, the Courtreferred to the danger of recidivism as the Applicant had, since hisrelease in 1958, allegedly committed more offenses of the characterreferred to in Section 183, 197, et sen. and 205 (c) of the Penal Code.By a decision of 10th November 1961, the Court of Appeal of Viennadismissed Stögmüller's appeal against the decision of the RegionalCourt, having expressly taken into consideration the danger of hiscommitting further offenses. The Court did not, however, support thefinding of the lower court that the Applicant might attempt to escapefrom Austria.A further request by the Applicant for his release was rejected bydecision of the investigating magistrate on 3rd January 1962 on thesame ground, and the subsequent appeal lodged by Dr. Ada Tammy, theApplicant's counsel, was dismissed by the Regional Court of Vienna onthy January 1962. The Court of Appeal of Vienna upheld this decisionon 14th March 1962.6. Since the Applicant's attempts to secure his release wereunsuccessful, he then filed several applications and complaints. In anapplication of 31st October 1962, addressed to the President of theRegional Criminal Court of Vienna, he complained inter alia, that theexamining magistrate was deliberately protracting the proceedings,which had already been pending for five years, and that during his 14months' detention he had been heard on only three occasions. Thisapplication was dismissed. The Applicant then lodged a disciplinarycomplaint (Aufsichtsbeschwerde) which was also dismissed by the Courtof Appeal of Vienna in a decision of 23rd January 1963.In a further application of 7th November 1962, the Applicant challengedthe Court of Appeal of Vienna, and the courts of first instance withinits jurisdiction on grounds of partiality, alleging that one of thejudges in Vienna was also involved in the case and that Dr. ErnstStandhartinger, who was accused with him, was a close relative of aViennese judge. At the same time, he requested the transfer of his caseto the Regional Court of Salzburg.The Supreme Court, which was required to pronounce only on the issueof the alleged lack of impartiality of the Court of Appeal of Vienna,dismissed the Applicant's motion on 6th February 1963, having foundthat there were no grounds for fearing that the Court would allowitself to be influenced by other than purely objective considerations.On 27th February 1963, the Court of Appeal of Vienna rejected theApplicant's motion in respect of the courts of first instance on thegrounds that the judges named by the Applicant had nothing to do withthe Applicant's case and were in no way associated with the judgesconducting it and that, moreover, Dr. Ernst Standhartinger was not aclose relative of the Viennese judge of the same name. The Applicant'srequest for the transfer of his case was also rejected.An application by the Applicant to the Constitutional Court submittingthat the proceedings against him had already continued for five yearsand that, although he had been in custody for 18 months, there wereseveral matters on which he had not yet been heard, was dismissed bya decision of the Constitutional Court on 27th March 1963 on the groundthat it was not competent to examine appeals against court judgmentsor decisions or against the behaviour of judicial organs with regardto jurisdiction.7. On 26th August 1963 the Applicant was released on bail of 200,000Schillings. The investigation against him is still being continued andhe has not yet been formally charged.The submissions of the PartiesWhereas in his Application form, in his reply of 14th September 1963and at the oral hearing on 1st October 1964, the Applicant allegesviolations of:- Article 5, paragraph (1) (c) in that he was arrested and detainedwithout reasonable suspicion;- Article 5, paragraph (3) in that the investigation against him didnot necessitate his detention for periods totalling 2 years and 7weeks;- Article 6, paragraph (1) in that he has not been brought to trialwithin a reasonable time;- Article 6, paragraph (1) in that the examining magistrate does notcarry out the investigation against him in an impartial manner; -Article 6, paragraph (3) in that the investigating judge has refusedto hear certain witnesses for the defence;Whereas the Respondent Government has replied to these allegations inits written observations of 28th August and 9th December 1963 and atthe oral hearing on 1st October 1964;Whereas the submissions of the Parties on these various issues may besummarised as follows:In respect of the alleged violation of Article 5, paragraph (1) (c) ofthe ConventionThe Respondent Government submitted that the number of offenses imputedto the Applicant and investigated by the examining magistrate, Dr.Leonhard, gave rise to a strong suspicion that the Applicant was guiltyof offenses punishable by a prison sentence of five to ten years. Hisarrest and detention were therefore justified in the interests ofjustice. Furthermore, it could not be excluded that the Applicantwould, if remaining in liberty, have committed further offenses.The Government also gave details as to the accusations which in 1961and 1962 had warranted the rejection of the Applicant's two requestsfor release. It further contested the Applicant's statement that he hadreceived permission to leave Austria and submitted that his failure toappear at a hearing on 18th August 1961 constituted a breach of theconditions upon which he was released in 1958. In conclusion, itsubmitted that this allegation was manifestly ill-founded.The Applicant submitted that his arrest and detention were notjustified under the Convention. A denunciation, which has been neitherproved nor even investigated, cannot be a basis of "a reasonablesuspicion" within the meaning of Article 5, paragraph (1) (c). He addedthat he had been able to refute each accusation when called upon tomake a statement before the examining magistrate. The Austrian Courtshad attempted to justify his arrest and detention on the ground thathe might commit further offenses, but they had failed to take intoaccount that, prior to his second arrest on 25th August 1961, he hadsold his company and finally withdrawn from all commercial activities.As to his failure to attend the hearing on 18th August 1961, hesubmitted that, on receiving the summons, he asked his lawyer torequest an adjournment of the hearing to which the examiningmagistrate, Dr. Leonhard, agreed. He returned from his journey toGreece on 19th August 1961 and immediately reported his return to hislawyer and to Dr. Leonhard. Nevertheless, the latter issued less thana week later a warrant for the Applicant's arrest.He further submitted that he had a standing permission to travelabroad, the only restriction being that he left his address with hislawyer.In respect of the alleged violation of Article 5, paragraph (3) of theConventionThe Respondent Government submitted that a danger existed in 1961 thatthe Applicant might commit further offenses and that his detention wasthen necessary. In 1963, that is two years after he had wound up hisaffairs, no such danger existed and the Applicant could be released onbail.It further submitted that, according to the above provision of theConvention, an arrested person shall be entitled to trial within areasonable time or to release pending trial. As the Applicant wasreleased on 26th August 1963, it concluded that the alternativeprovision did not come into consideration and paragraph (3) had beenduly respected, and the Commission was barred from examining the lengthof the period during which the Applicant had been detained.In any event, the term "within a reasonable time" should be given aflexible interpretation in the light of the particular circumstancesof each case. A detention of the Applicant for a prolonged period wasnecessary in view of the extremely complex nature of the accusationslaid against him.The Applicant submitted that the above provision had been violated inthat he had not been brought to trial within a reasonable delay orreleased pending trial. The fact that he was released prior to trial,namely on 26th August 1963, did not bar the Commission from examiningwhether or not a period of detention totalling 2 years and 7 weeks wa***cessive. He pointed that the reasons which finally led to his releasein 1963 already existed and ought to have been accepted in 1961;indeed, prior to his arrest, he had on 14th August 1961 sold hiscompany and voluntarily detached himself from any commercial activitywhich, in the eyes of the Prosecution, might have tempted him to commitfurther offenses. In fact, the grounds on which his release was orderedcorresponded closely to those contained in his own requests for releasetwo years earlier.During the two years which he had spent in prison pending trial, he hadbeen heard by the examining magistrate on 13 occasions only, namely,on 26th August and 28th December 1961, 11th, 13th, 16th, 17th, 18th and23rd July 1962, 29th May, 18th June, 5th, 7th and 9th July 1963. Thesehearings related to only five accusations out of about 80 underinvestigation.During the year which has elapsed since his release he has been heardon 15 accusations. This tends to show that his detention was entirelysuperfluous and purposeless.In respect of the alleged violation of Article 6, paragraph (1) of theConvention in that the Applicant was not brought to trial within areasonable time.The Respondent Government submitted that the accusations against theApplicant were extraordinarily complex and difficult to investigate.It was not contested that the preliminary examination had begun in 1957and that it was difficult now, after almost seven years, to give anyprecise information as to when this investigation could be completed.It was, however, submitted that the term "reasonable time" should beinterpreted in relation to the special circumstance of each case. Thepresent case was extraordinary in that more than 80 differenttransactions had to be carefully examined and these transactions wereof a particularly complicated factual and legal character and in thatthe intransigent behaviour of the Applicant did not facilitate theirexamination.