[align=left]THE FACTS

Whereas the facts of the case may be summarised as follows:

The Applicant is an Austrian citizen born in 1922 and is the manager
of the transport firm ITEKA in Vienna.

Preliminary investigations into a suspected fraud by the Applicant
under Sections 197, 200, 201 (a) and (d), 203 and 5 of the Penal Code
were opened in the winter of 1960 - 61 at the Regional Court of Vienna.

In particular, it is clear from official documents submitted to the
Commission that he was suspected of having between October 1952 and
September 1956, forwarded to a certain Lothar Rafael in Trieste,
Holland, Switzerland and other countries, various consignments of soap,
milling tools, soldering sticks, soldering wire, clothing, electrical
fittings, gym shoes, moleskins and machine spares. He was further
suspected of having procured currency purporting to be the proceeds
from exports, of having financed the purchase of such export goods and
provided guarantees for their transport, thereby knowingly assisting
Rafael, in return for a share of the proceeds, and, of having
improperly obtained refunds of indirect taxes.

The payment of such refunds entailed a loss to the State of some 6-7
million schillings. Finally, the Applicant was suspected of having,
between November 1954 and August 1955 carried out similar transactions
involving tax refunds amounting to 4 million schillings on behalf of
Dr. Franz Schmuckerschlag, who was notorious for previous export
swindles.

The Applicant was held in custody in connection with the present case
from 24th February 1961 to 12th May 1961, on which date he was released
without bail. Later the same year, he obtained permission from the
examining judge to spend a holiday in Finland after which he returned
to Vienna. Following the extradition to Austria on 21st December 1961
of Lothar Rafael, who had been arrested in the Federal Republic of
Germany on 22nd June 1961, and his interrogation by the authorities,
the Applicant was heard, on 3rd, 4th, 5th and 6th July 1962, by the
judge in charge of the investigation of the case and, on 10th and 11th
July, he was confronted with Rafael. Apparently, in view of the weight
of suspicion hanging over him, another trip to Finland, which he was
planning for 1962, was interpreted as an attempt to flee the country
and escape further criminal proceedings and, on 12th July 1962, the
Applicant was arrested for the second time and has since been held in
detention pending trial, the indictment having been drawn up on 26th
March 1964.

At the time of his arrest the Applicant was suspected of having
committed certain other crimes in respect of which he was acquitted in
1963.

In order to illustrate the difference between the situation in 1961 and
at the present time he has submitted that in 1961:

(1) he was a suspected person in connection with two separate cases
then under investigation;
(2) the offences allegedly committed by him involved about 40 million
Austrian schillings;
(3) he received permission to spend - and did spend - his holidays in
Finland and, in January 1962, he similarly received permission to go
to the Federal Republic of Germany.
(4) bail was not requested as a condition for his release.

On the other hand, at the present time,

(1) he is charged in one case only, having in the meanwhile been
acquitted on other charges;
(2) the offenses alleged to have been committed by him involve only
about 6 million Austrian schillings;
(3) he is being kept under arrest on the pretext of preventing his
fleeing the country;
(4) his offer of bail of 250,000 Austrian schillings has been rejected.

The Applicant's protest against arrest was dismissed on 31st July 1962
by the Judges' Council of the Regional Court (Landesgericht) of Vienna
and, on 10th September 1962, by the Court of Appeal (Oberlandesgericht)
of Vienna.

A formal complaint (Haftbeschwerde) was lodged by the Applicant on 16th
October 1962 but this was also dismissed by the same courts on 27th
December 1962 and 19th February 1963 respectively in sessions at which
the Public Prosecutor was heard (nach Anhörung) but from which the
Applicant and his counsel were excluded.

These proceedings were conducted in accordance with Articles 113 and
114 of the Code of Criminal Procedure which provide as follows:

Article 113 (1) Any person who, during the preliminary investigation,
the preliminary examination or the proceedings following the
introduction of the formal accusation in writing, considers himself to
be aggrieved by a measure or a delay on the part of the examining
magistrate shall have the right to request a decision on the matter
from the Judges' Council (Ratskammer) and to present his application
either in writing or verbally to the examining magistrate or directly
to the Judges' Council ...

(2) The Judges' Council decides in a non-public session having heard
the examining magistrate and the public prosecutor.

Article 114 (1) As a general rule no appeal is allowed against such
decisions by the Judges' Council. Appeal (Beschwerde) can, however, be
lodged with the Courts of Appeal by the Public Prosecutor ... and the
accused person against such decision if it relates to the question of
... prolongation of, or release from, detention pending trial or
fixation of bail ...

(2) ... The Court of Appeal decides on the appeal in a non-public
session having heard the superior public prosecutor.

On 16th September 1962, the Applicant's daughter, Maria Neumeister,
sent a letter to the Minister of Justice offering bail of 1 million
Austrian schillings to obtain her father's release.

On 8th January 1964, the Regional Court of Vienna authorised the
Applicant's release on bail of 2 million Austrian schillings, but on
31st March 1964, the Court reduced this sum to 1 3/4 million
schillings.

It appears that, immediately after this decision had been given, the
Applicant's previous lawyer, Dr. Michael Stern, offered to find bail
of 1 million schillings without previously obtaining the Applicant's
authorization to make this offer. Dr. Stern informed the Commission's
Secretary of this on 14th April 1964.

On 3rd June 1964, the Regional Court of Vienna further reduced the
Applicant's bail to 1 million schillings but the Applicant declared
himself unable to raise this sum. During the oral hearing before the
Commission the Applicant's present lawyer, Dr. Leutgeb, submitted that,
at a hearing before the Regional Court between 31st March 1964 and 3rd
June 1964, the Applicant had withdrawn his instructions from his former
lawyer and informed the judge that he was not financially in a position
to accept release on the above bail with the result that the Applicant
is still in prison. The truth of this assertion has not been
ascertained by the Commission.

The submissions of the Parties

Whereas in his application form, in his reply of 6th February 1964 and
during the oral hearing on 6th July 1964 the Applicant alleges
violations of

- Article 5, paragraph (1) (c), in that he was arrested and detained
without reasonable suspicion of having committed a crime;

- Article 5, paragraph (2) in that he was not informed of the charges
against him;

- Article 5, paragraphs (3) and (4) in that the investigation of the
charges against him does not necessitate the prolongation of his
detention and, that he should be released pending trial or be brought
to trial within a reasonable delay;

- Article 6, paragraphs (1) and (3) (b) and (c), in that the principle
of "equality of arms" was not respected during the hearings before the
Regional Court and the Court of Appeal of Vienna and, in this respect,
he refers to the decisions in the Pataki-Dunshirn cases (Applications
Nos. 596/59 and 789/60);

Whereas the Respondent Government has replied to the Applicant's
submission in its written observations of 24th January 1964 and at the
oral hearing on 6th July 1964;

Whereas the submissions of the Parties on the various issues may be
summarised as follows:

In respect of Articles 25 and 26 of the Convention

During the oral hearing the Respondent Government submitted that the
Applicant could not be considered a "victim" of a violation of the
Convention within the meaning of Article 25 and that, having regard to
the provisions of Article 26, he had not exhausted the domestic
remedies available to him under Austrian law.

The Government submitted that, on 3rd April 1964, the Applicant had
lodged a request for his release on payment of bail of 1 million
Austrian schillings and that this request was granted on 3rd June 1964.
Article 25, paragraph (1), stipulated that a person lodging an
application with the Commission must be a "victim" of a violation of
the Convention and, in the present case, the Applicant was clearly not
such a "victim" as the decision of which he complained fully complied
with his own request.

It was further submitted that the Applicant had not availed himself of
the possibility of introducing a new request for his release on bail
to be fixed at a sum which he is prepared to pay. Under Article 113 of
the Code of Criminal Procedure such a request may be introduced at any
time and thus it offered him the possibility of obtaining a redress
against the decision of 3rd June 1964 which, according to the
Applicant, was based on an unauthorised offer of bail made by his
lawyer.

The Applicant submitted in reply that he had never consented personally
to a bail of 1 million Austrian schillings as he maintained that he did
not commit the offences with which he was charged and that he did not
possess the sum required for his release. The offer was made without
his authority by Dr. Stern, the Applicant's former lawyer, and the
Applicant had never agreed to a fixed bail of more than 250,000
schillings.

It was further submitted that Article 26 had been duly complied with
by the Applicant. As, indeed, although it was true that he could have
lodged a new request for his release by offering to find bail of a
lower sum than 1 million schillings, it was hardly to be expected that
such a request would be successful. The Court would almost certainly
not have consented to a reduction of the amount which it had fixed a
month earlier.

In respect of the alleged violation of Article 5, paragraph (1) (c)

The Respondent Government submitted that both the incriminating
statements made by the chief offender, Rafael, and the evidence
collected inside and outside Austria, provided reasonable grounds for
suspecting the Applicant of unlawful activities (fraud involving 10
million schillings). The Applicant's detention was therefore justified
in the interests of justice. Furthermore, there was a danger of the
Applicant fleeing the country, particularly after Rafael, who had also
sought refuge abroad and was returned to Austria following a request
for his extradition, had been placed under arrest. Suspicion against
the Applicant was further increased by the fact that he did not lodge
any objections to the preliminary examination or to the indictment.
Consequently, it was clear that the Convention had not been violated
to the extent alleged by the Applicant.

The Applicant submitted that his arrest was due to incriminating
statements which were made without any foundation by Mr. Rafael. He
contested the suggestion that he had any intention of leaving Austria
permanently in order to escape the consequences of his alleged
offences. Indeed, if this had been the case, he would have had ample
opportunity to do so in the summer of 1961 and in January 1962 when he
received permission to go abroad and even during the few days between
his confrontation with Rafael on 3rd, 4th, 5th and 6th July and his
arrest on 18th July 1962. The Applicant's arrest was contrary to the
provisions of the Convention as there was no reasonable suspicion
against him nor any danger of his fleeing the country. He denied that
any importance could be attached to his failure to object to the
investigations or to the indictment. Such protest would have only been
a formality and would have only impeded the progress of the case.

In respect of the alleged violation of Article 5, paragraph (2)

The Applicant's lawyer submitted during the oral hearing that the
Applicant had never been informed in detail and in writing of the
charges which were brought against him and which formed the basis of
his detention.

The Respondent Government made no particular submission on this issue.

In respect of the alleged violation of Article 5, paragraph (3)

The Respondent Government submitted that there was no general standard
for interpreting the term "within a reasonable delay" and this should
be determined in relation to the special circumstances of each
individual case. The present case, already complex, was further
complicated by the fact that part of the evidence required to convict
or acquit the 10 accused persons had to be obtained abroad (in the
Middle East, in African and Latin American States as well as in the
Federal Republic of Germany, Italy, Switzerland, the Netherlands and
Liechtenstein). The case file comprised 24 volumes and 8 files of
supporting documents. It was also relevant to point out that the
accused persons obstructed the investigation by filing numerous
complaints against the officials involved. In these circumstances, a
period of detention of 2 years could not be described as unreasonably
long. Consequently, this part of the Application would appear to be
unfounded.

The Applicant did not contest that the investigation was complicated
and that the case was complex. Nevertheless, it was contrary to the
above provisions of Article 5 to keep a person detained for almost two
years pending his trial and to fix bail at a sum which, as in the
present case, was obviously beyond his means. If the case was as
complex as the Government contended, the Court must assign several
persons to conduct the investigation in order to bring about his trial
more speedily.

In particular he submitted that the situation was in certain respects
different in 1961, when he was released from prison, from the position
in 1963. This difference is best illustrated as follows:

1. In 1961 he was a suspected person in connection with two separate
cases then under investigation;
2. the offences allegedly committed by him involved about 40 million
Austrian schillings;
3. he received permission to spend - and did spend - his holidays in
Finland and, in January 1962, he similarly received permission to go
to the Federal Republic of Germany;
4. bail was not requested as a condition for his release.

On the other hand, at the present time

1. he is a suspect in one case only, having in the meanwhile been
acquitted on other charges;
2. the offences alleged to have been committed by him involve only
about 6 million Austrian schillings;
3. he is being kept under arrest on the pretext of preventing his
fleeing the country;
4. his offer of bail of 250,000 Austrian schillings had been rejected.
In respect of the alleged violation of Article 5, paragraph (4)

The Respondent Government submitted that this provision did not prevent
the Court in the present case from requiring the Applicant, as provided
for in municipal law (Article 192 of the Code of Criminal Procedure),
to put up as bail a sum fixed in relation not only to the damages
resulting from the alleged offences (approximately 10 million
schillings), but also to the prisoner's own financial circumstances and
the means of the person standing surety. Bail had in fact been fixed
on this basis and it would thus appear that this part of the
Application was unfounded.[/align]