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07-16-2009, 01:12 PM
Dr. X. v. AUSTRIA - 2278/64 [1967] ECHR 5 (30 May 1967)
THE FACTSWhereas the facts presented by the Parties may be summarised asfollows:The Applicant is an Austrian citizen, born in 1929 and living atInnsbruck. He complains of the duration of certain criminal proceedingsagainst him before the Austrian courts and of the length of hisdetention pending trial. The details of these proceedings are asfollows:I. In 1961 the Applicant was suspected of having instigated a certainDr. Y to organise with Italian nationals a course on explosives and ofhaving ordered dynamite for the purpose of committing acts of terrorismabroad. A criminal investigation (Voruntersuchung) against him andother persons was opened by the Regional Court (Landesgericht) of Grazand, on .. August, 1961, the Applicant was arrested on suspicion ofhaving 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, ordera 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, byreasons of the severity of his respective sentence, his itinerant wayof life or because he is unknown in the neighbourhood, homeless orwithout papers, or for any other good reason, it appears likely thathe will abscond;3. the suspected person has attempted to influence witnesses, expertsor other accused in a manner likely to prevent the ascertainment of thefacts or otherwise to hinder the investigation by destroying traces ofthe crime or misdemeanour, or where there are good grounds to fear thatthis might occur;4. particular circumstances justify the fear that the accused willrepeat a completed action or carry out an attempted or threatenedaction."On .. October, 1961, the Applicant filed a petition for release fromdetention on a solemn undertaking pursuant to Article 191 of the Codeof Criminal Procedure. This petition was refused by the investigatingjudge (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, theinvestigation had been extended to further offenses under theExplosives Act and held that, especially in view of this extension ofthe investigation, the risks of the Applicant's absconding andcommitting further similar offenses continued to obtain as legalreasons for his detention. The Applicant's further appeal from thisdecision was dismissed by the Court of Appeal (Oberlandesgericht) ofGraz on .. December, 1961.Following a second petition for release by the Applicant, the Judges'Chamber found, on .. December, 1961, that there was no further dangerof his committing further offenses of the same nature and, on the sameday, the Applicant was released on parole and bail of 10,000 AustrianSchillings under Articles 191 and 192 of the Code of CriminalProcedure.Before that date, and also subsequently, the volume of the proceedingsgrew considerably as a result of the inclusion of several criminalproceedings pending before other courts against the Applicant and agreat number of other persons for suspected planning and executionabroad 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 anothercriminal case which was then pending before the Regional Court ofInnsbruck. In that case, he was suspected of having given refuge topersons who moved explosives from Innsbruck to foreign countries aswell as of having himself stored explosives in his home. The Applicantstates that the criminal proceedings relating to these alleged offenseswere later discontinued.III. On .. March, 1963, the Judges' Chamber of the Regional Court ofGraz declared forfeited the Applicant's bail in the proceedingsmentioned under I above on the ground that he had left his domicile inAustria and remained abroad without the Court's permission. For thesame reason, the investigating judge of the Court, on .. March, 1963,issued a new warrant of arrest and, on .. June, 1964, the Applicant wasre-arrested at Klagenfurt. His appeal against detention was dismissedby the Judges' Chamber on .. July, 1964. The Chamber stated that, afterhis return to Austria, the Applicant had lived there under a false nameand it confirmed the finding of the investigating judge that there wasa danger that the Applicant might, if released, again flee the country.The investigation against the Applicant was extended to furthercriminal offenses under the Explosives Act and the Arms Act(Waffengesetz) and later on also to an offence of incitement todisaffection (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 werecharged 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 theinvestigating 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) openedbefore the Schöffengericht (a chamber composed of two judges and twojurymen) of the Regional Court of Graz. Counsel for the defence movedthat the Schöffengericht should immediately declare itself incompetentpursuant to Article 261 of the Code of Criminal Procedure on the groundthat the defendants were suspect of having joined in a conspiracywithin the meaning of Article 7 of the National Security Act(Staatsschutzgesetz) and that consequently the case fell within thecompetence of the Court of Assizes (Geschworenengericht). TheSchöffengericht dismissed this motion, holding that only after havingheard the evidence could it determine whether the acts imputed to thedefendants were of a political nature. At the same time the Courtrefused a new petition for release filed by the Applicant.After having heard all defendants and examined the evidence, theSchöffengericht, by its judgment of .. May, 1965, declared itselfincompetent. The Court stated that it had come to the conclusion thatthe defendants had joined in a conspiracy which served the purpose notonly of undertaking plots involving explosives but also of procuring,in a clandestine and unlawful manner, ammunition and other material forfighting and of keeping and distributing such material to the membersof their group acting as armed bands abroad. Therefore, the defendantswere under strong suspicion that, in addition to the crimes punishableunder the Explosives Act which formed the subject of the indictment,they had committed an offence punishable under Article 10 of theNational Security Act, which, however, established the Court of Assizesto be competent in accordance with Article 14 a of the Code of CriminalProcedure.The Schöffengericht deemed itself no longer competent to decide on apetition for release submitted by the Applicant after the abovejudgment had been pronounced.V. On .. and .. June, 1965, further petitions for release were filedby the Applicant and the Regional Court of Graz decided on .. June,1965, that he should be released on parole and on furnishing bail of200,000 Austrian Schillings. He was accordingly released on .. June,1965.VI. The Applicant's trial before the Court of Assizes of Graz openedon .. September and lasted until .. October, 1965. The jurorsunanimously answered all of the main questions and secondary questions(8) in the negative. On the basis of this verdict the Applicant wasacquitted of certain counts of the charge on .. October, 1965, inaccordance with Article 259, No. 3 of the Code of Criminal Procedure;this judgment became final. Regarding the other charges the verdict wassuspended by a unanimous decision of the Schwurgerichtshof (theprofessional judges of the Court of Assizes) under Article 334,paragraph (1) of the Code of Criminal Procedure. According to thisrule, the Schwurgerichtshof may, where it holds unanimously that thejurors passed an erroneous verdict on the main issue, suspend theverdict 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, theSupreme Court, on .. March, 1966, referred the case to the Court ofAssizes 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 againsthim before the Austrian Courts and the length of his detention pendingtrial, the Applicant now alleges violations of Article 5, paragraph (3)and Article 6, paragraph (1) of the Convention. He submits that asubstantial delay in the proceedings was caused by the Office of thePublic Prosecutor which brought his case before the Schöffengerichtalthough that Court had no jurisdiction in the matter.Proceedings before the CommissionI. On 14th December, 1966, the Commission decided to give notice, inaccordance with Rule 45, paragraph (3) (b) of its Rules of Procedure,of the Application to the Respondent Government and to invite it tosubmit its observations in writing on the admissibility of theApplication.II. In its observations of 17th March, 1967, the Austrian Governmentsubmitted that the Applicant's complaints under Articles 5 and 6 of theConvention 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), theGovernment pointed out that, during his first detention from .. Augustuntil .. December, 1961, the Applicant did not lodge an appeal againstdetention until .. October. During his second detention from .. June,1964, until .. June, 1965, he failed to introduce a further appealagainst the decision given by the Judges' Chamber on .. July, 1964,although such a remedy lay under Article 114, paragraph (1) of the Codeof Criminal Procedure.2. With respect to the complaint under Article 5, paragraph (3), theGovernment further submitted that the Applicant's case was veryvoluminous and complicated. The great number of accused and of criminalacts made the investigation very difficult. The case-file comprised tenvolumes containing altogether 5478 pages. In the Government's opinion,further reasons for the length of the Applicant's detention were hisfleeing to another country, the host of his appeals against detentionand other petitions, and the fact that, after his first release, hecontinued to commit criminal acts. In these circumstances, theApplicant had been brought to trial "within a reasonable time" inaccordance with Article 5, paragraph (3), and it followed that thispart of the Application was manifestly ill-founded within the meaningof Article 27, paragraph (2) of the Convention.3. In respect of the alleged violation of Article 6, paragraph (1) ofthe Convention, the Government submitted that a person could not beregarded as being under a "criminal charge" ("accusation" in the Frenchtext, "Anklage" in the German translation) within the meaning of thatprovision until he had been formally arraigned. Reference was made inthis connection to the Commission's decisions on the admissibility ofApplication No. 1216/61 (Collection of Decisions, Volume 11, pages 1[5 - 6]) and Application No. 1545/62 (Yearbook of the EuropeanConvention on Human Rights, Volume 5, pages 270 [276]) and to the usagein English, French and Austrian criminal procedure.In the opinion of the Government, it was therefore only when a formalindictment (Anklage) within the meaning of Chapter XVI of the AustrianCode of Criminal Procedure had been brought against him and becomelegally valid (rechtskräftig), that a person in Austria had the rightto 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 wasoverruled by the Court of Appeal of Graz. In the meanwhile, the chargeagainst him had twice been tried in judicial proceedings and decidedupon by a judgment. His third trial was expected to take place beforethe Court of Assizes of Linz in May 1967.With regard to the Applicant's complaint that a considerable delay inthe criminal proceedings against him was caused by the PublicProsecutor's Office in that it brought his case before theSchöffengericht although such court was not competent for the subjectmatter, the Government made the following observations:
THE FACTSWhereas the facts presented by the Parties may be summarised asfollows:The Applicant is an Austrian citizen, born in 1929 and living atInnsbruck. He complains of the duration of certain criminal proceedingsagainst him before the Austrian courts and of the length of hisdetention pending trial. The details of these proceedings are asfollows:I. In 1961 the Applicant was suspected of having instigated a certainDr. Y to organise with Italian nationals a course on explosives and ofhaving ordered dynamite for the purpose of committing acts of terrorismabroad. A criminal investigation (Voruntersuchung) against him andother persons was opened by the Regional Court (Landesgericht) of Grazand, on .. August, 1961, the Applicant was arrested on suspicion ofhaving 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, ordera 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, byreasons of the severity of his respective sentence, his itinerant wayof life or because he is unknown in the neighbourhood, homeless orwithout papers, or for any other good reason, it appears likely thathe will abscond;3. the suspected person has attempted to influence witnesses, expertsor other accused in a manner likely to prevent the ascertainment of thefacts or otherwise to hinder the investigation by destroying traces ofthe crime or misdemeanour, or where there are good grounds to fear thatthis might occur;4. particular circumstances justify the fear that the accused willrepeat a completed action or carry out an attempted or threatenedaction."On .. October, 1961, the Applicant filed a petition for release fromdetention on a solemn undertaking pursuant to Article 191 of the Codeof Criminal Procedure. This petition was refused by the investigatingjudge (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, theinvestigation had been extended to further offenses under theExplosives Act and held that, especially in view of this extension ofthe investigation, the risks of the Applicant's absconding andcommitting further similar offenses continued to obtain as legalreasons for his detention. The Applicant's further appeal from thisdecision was dismissed by the Court of Appeal (Oberlandesgericht) ofGraz on .. December, 1961.Following a second petition for release by the Applicant, the Judges'Chamber found, on .. December, 1961, that there was no further dangerof his committing further offenses of the same nature and, on the sameday, the Applicant was released on parole and bail of 10,000 AustrianSchillings under Articles 191 and 192 of the Code of CriminalProcedure.Before that date, and also subsequently, the volume of the proceedingsgrew considerably as a result of the inclusion of several criminalproceedings pending before other courts against the Applicant and agreat number of other persons for suspected planning and executionabroad 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 anothercriminal case which was then pending before the Regional Court ofInnsbruck. In that case, he was suspected of having given refuge topersons who moved explosives from Innsbruck to foreign countries aswell as of having himself stored explosives in his home. The Applicantstates that the criminal proceedings relating to these alleged offenseswere later discontinued.III. On .. March, 1963, the Judges' Chamber of the Regional Court ofGraz declared forfeited the Applicant's bail in the proceedingsmentioned under I above on the ground that he had left his domicile inAustria and remained abroad without the Court's permission. For thesame reason, the investigating judge of the Court, on .. March, 1963,issued a new warrant of arrest and, on .. June, 1964, the Applicant wasre-arrested at Klagenfurt. His appeal against detention was dismissedby the Judges' Chamber on .. July, 1964. The Chamber stated that, afterhis return to Austria, the Applicant had lived there under a false nameand it confirmed the finding of the investigating judge that there wasa danger that the Applicant might, if released, again flee the country.The investigation against the Applicant was extended to furthercriminal offenses under the Explosives Act and the Arms Act(Waffengesetz) and later on also to an offence of incitement todisaffection (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 werecharged 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 theinvestigating 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) openedbefore the Schöffengericht (a chamber composed of two judges and twojurymen) of the Regional Court of Graz. Counsel for the defence movedthat the Schöffengericht should immediately declare itself incompetentpursuant to Article 261 of the Code of Criminal Procedure on the groundthat the defendants were suspect of having joined in a conspiracywithin the meaning of Article 7 of the National Security Act(Staatsschutzgesetz) and that consequently the case fell within thecompetence of the Court of Assizes (Geschworenengericht). TheSchöffengericht dismissed this motion, holding that only after havingheard the evidence could it determine whether the acts imputed to thedefendants were of a political nature. At the same time the Courtrefused a new petition for release filed by the Applicant.After having heard all defendants and examined the evidence, theSchöffengericht, by its judgment of .. May, 1965, declared itselfincompetent. The Court stated that it had come to the conclusion thatthe defendants had joined in a conspiracy which served the purpose notonly of undertaking plots involving explosives but also of procuring,in a clandestine and unlawful manner, ammunition and other material forfighting and of keeping and distributing such material to the membersof their group acting as armed bands abroad. Therefore, the defendantswere under strong suspicion that, in addition to the crimes punishableunder the Explosives Act which formed the subject of the indictment,they had committed an offence punishable under Article 10 of theNational Security Act, which, however, established the Court of Assizesto be competent in accordance with Article 14 a of the Code of CriminalProcedure.The Schöffengericht deemed itself no longer competent to decide on apetition for release submitted by the Applicant after the abovejudgment had been pronounced.V. On .. and .. June, 1965, further petitions for release were filedby the Applicant and the Regional Court of Graz decided on .. June,1965, that he should be released on parole and on furnishing bail of200,000 Austrian Schillings. He was accordingly released on .. June,1965.VI. The Applicant's trial before the Court of Assizes of Graz openedon .. September and lasted until .. October, 1965. The jurorsunanimously answered all of the main questions and secondary questions(8) in the negative. On the basis of this verdict the Applicant wasacquitted of certain counts of the charge on .. October, 1965, inaccordance with Article 259, No. 3 of the Code of Criminal Procedure;this judgment became final. Regarding the other charges the verdict wassuspended by a unanimous decision of the Schwurgerichtshof (theprofessional judges of the Court of Assizes) under Article 334,paragraph (1) of the Code of Criminal Procedure. According to thisrule, the Schwurgerichtshof may, where it holds unanimously that thejurors passed an erroneous verdict on the main issue, suspend theverdict 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, theSupreme Court, on .. March, 1966, referred the case to the Court ofAssizes 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 againsthim before the Austrian Courts and the length of his detention pendingtrial, the Applicant now alleges violations of Article 5, paragraph (3)and Article 6, paragraph (1) of the Convention. He submits that asubstantial delay in the proceedings was caused by the Office of thePublic Prosecutor which brought his case before the Schöffengerichtalthough that Court had no jurisdiction in the matter.Proceedings before the CommissionI. On 14th December, 1966, the Commission decided to give notice, inaccordance with Rule 45, paragraph (3) (b) of its Rules of Procedure,of the Application to the Respondent Government and to invite it tosubmit its observations in writing on the admissibility of theApplication.II. In its observations of 17th March, 1967, the Austrian Governmentsubmitted that the Applicant's complaints under Articles 5 and 6 of theConvention 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), theGovernment pointed out that, during his first detention from .. Augustuntil .. December, 1961, the Applicant did not lodge an appeal againstdetention until .. October. During his second detention from .. June,1964, until .. June, 1965, he failed to introduce a further appealagainst the decision given by the Judges' Chamber on .. July, 1964,although such a remedy lay under Article 114, paragraph (1) of the Codeof Criminal Procedure.2. With respect to the complaint under Article 5, paragraph (3), theGovernment further submitted that the Applicant's case was veryvoluminous and complicated. The great number of accused and of criminalacts made the investigation very difficult. The case-file comprised tenvolumes containing altogether 5478 pages. In the Government's opinion,further reasons for the length of the Applicant's detention were hisfleeing to another country, the host of his appeals against detentionand other petitions, and the fact that, after his first release, hecontinued to commit criminal acts. In these circumstances, theApplicant had been brought to trial "within a reasonable time" inaccordance with Article 5, paragraph (3), and it followed that thispart of the Application was manifestly ill-founded within the meaningof Article 27, paragraph (2) of the Convention.3. In respect of the alleged violation of Article 6, paragraph (1) ofthe Convention, the Government submitted that a person could not beregarded as being under a "criminal charge" ("accusation" in the Frenchtext, "Anklage" in the German translation) within the meaning of thatprovision until he had been formally arraigned. Reference was made inthis connection to the Commission's decisions on the admissibility ofApplication No. 1216/61 (Collection of Decisions, Volume 11, pages 1[5 - 6]) and Application No. 1545/62 (Yearbook of the EuropeanConvention on Human Rights, Volume 5, pages 270 [276]) and to the usagein English, French and Austrian criminal procedure.In the opinion of the Government, it was therefore only when a formalindictment (Anklage) within the meaning of Chapter XVI of the AustrianCode of Criminal Procedure had been brought against him and becomelegally valid (rechtskräftig), that a person in Austria had the rightto 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 wasoverruled by the Court of Appeal of Graz. In the meanwhile, the chargeagainst him had twice been tried in judicial proceedings and decidedupon by a judgment. His third trial was expected to take place beforethe Court of Assizes of Linz in May 1967.With regard to the Applicant's complaint that a considerable delay inthe criminal proceedings against him was caused by the PublicProsecutor's Office in that it brought his case before theSchöffengericht although such court was not competent for the subjectmatter, the Government made the following observations: