[align=left]The Applicant submitted that the Courts had, when fixing bail, failed
to investigate the Applicant's financial position. Bail could not,
under the Convention, be fixed at a sum which would, for all practical
purposes, prevent a prisoner's release from detention. Regard should
also be had to the possible sentence which would be imposed upon the
Applicant if convicted and it was submitted that such sentence could
scarcely exceed two years which was the period already spent by him in
detention.
In respect of the alleged violations of Article 6 (1)
The Respondent Government did not contest that, in the examination by
the courts of the Applicant's petition for release, prosecution
officers were "heard" in the absence of the accused and his defence
counsel. It was, however, submitted that Article 6 did not apply to
these proceedings as they were not part of the proceedings designed to
ascertain the validity of the charge or to establish the guilt or
innocence of the Applicant; their purpose was merely to determine the
question of the continuation of his detention. These proceedings were
not designed to determine a "civil right" of the Applicant within the
meaning of Article 6 and in this respect, reference was made to
Austrian law and its criteria for defining civil rights. If Article 6
was applicable to these proceedings, Article 5, paragraph (4), would
be superfluous and this was clearly an untenable assertion. The
Applicant's reference to Article 6 of the Human Rights Convention and
the identification by him of his case with the Pataki-Dunshirn cases
were irrelevant. Indeed, during the proceedings under review, the
Public Prosecutor was at a disadvantage in comparison with the accused.
The reason for the summary nature of the proceedings was to avoid
delays in dealing with requests for release. This part of his
Application was consequently unfounded.
The Applicant submitted that, during the proceedings relating to the
justification of his detention, the Applicant and his lawyer were
excluded from the court sessions whereas the Public Prosecutor was
heard by the court. It was contended that the principle laid down by
the Commission, in interpreting Article 6, paragraph (1), in the cases
of Pataki and Dunshirn, applied with equal force during the proceedings
now at issue. It was not admitted by the Applicant that the Public
Prosecutor was at a disadvantage in comparison with the prisoner and
the defence in general. On the contrary, the opposite view was
expressed in a public statement by the Minister of Justice who stated,
in the interest of the accused, that the principle of equality of arms
ought also to be observed during the proceedings under review.
In respect of the alleged violation of Article 6, paragraph (3)(b) and
(c)
The Respondent Government made no particular submissions on this issue.
The Applicant, apart from referring to the above paragraph in his
Application form, did not further pursue his allegation.
THE LAW
As regards the general objection made by the Respondent Government
(Articles 25 and 26 (Art. 25, 26) of the Convention)
Whereas Article 25, paragraph (1), (Art. 25-1) of the Convention
provides that:
"The Commission may receive petitions ... from any person ... claiming
to be the victim of a violation by one of the High Contracting Parties
of the rights set forth in this Convention"; and whereas Article 26
(Art. 26) provides: "The Commission may only deal with a matter after
all domestic remedies have been exhausted, according to the generally
recognised rules of international law ..."
Whereas the Respondent Government has submitted that the Applicant is
no longer a "victim" within the meaning of Article 25 (Art. 25) and,
further, that, by failing to lodge a renewed request for release on
bail after the decision of 3rd June 1964, the Applicant has not
exhausted the domestic remedies available to him in pursuance of
Article 26 (Art. 26);
Whereas, first, the Respondent Government has, by its submission that
the Applicant was not a "victim" within the meaning of Article 25
(Art. 25) contended that the Regional Court of Vienna, in its decision
of 3rd June 1964 fixed the Applicant's bail at 1 million schillings in
accordance with the offer made by his own lawyer, Dr. Stern;
Whereas it appears from Dr. Stern's letter to the Commission of 14th
April 1964 that he undertook on the Applicant's behalf to find bail of
1 million schillings without having received his client's
authorization;
Whereas it has been submitted by the Applicant's present lawyer during
the oral hearing that prior to the decision of 3rd June 1964 the
Applicant informed the Regional Court of Vienna that he was unwilling
and financially unable to find bail fixed at that amount; whereas,
consequently the Applicant is still detained pending trial and has not
been released on conditions which he considers to be reasonable;
Whereas, secondly in respect of the objection made by the Government
under Article 26 (Art. 26) it is true that, under Articles 113 and 114
of the Code of Criminal Procedure, the Applicant can at any time lodge
a request for his release on bail and during these proceedings offer
such bail as he considers reasonable in view of his financial
situation;
Whereas the Commission, in taking into consideration the bail fixed by
the Austrian court at 1 million schillings, is satisfied that there was
no reason to believe that the Austrian courts would, about one month
later, order the Applicant's release on bail of 250,000 Austrian
schillings as had been offered by the Applicant.
Whereas, under Article 26 (Art. 26) the question whether or not a
domestic remedy must be exhausted before the Commission can be seized
if a case is to be determined according to the generally recognised
rules of international law; whereas in its decision on the
admissibility of Application No. 514/59 (X. v. Austria - Yearbook III,
page 196), in which reference was made to the jurisprudence of the
Permanent Court of International Justice, the Commission held that it
was not necessary to have recours to domestic tribunals if the result
must inevitably be the repetition of a decision already pronounced;
Whereas it follows that, in the circumstances of the present case, the
remedy now open to the Applicant cannot be considered an effective and
sufficient remedy which under Article 26 (Art. 26) of the Convention,
was bound to be exhausted by the Applicant;
Whereas, therefore, the Commission rejects the general objection to the
admissibility of the Application made by the Respondent Government on
the basis of Articles 25, paragraph (1) and 26 (Art. 25-1, 26) of the
Convention;
As regards the alleged violation of Article 5, paragraph (1) (c)
(Art. 5-1-c)
Whereas Article 5, paragraph (1) (c) (Art. 5-1-c) of the Convention
provides as follows: "No-one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law ... the lawful arrest and detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence
or fleeing after having done so."
Whereas the Applicant alleges that on 12th July 1962, the date of his
second arrest, the police officials had no reasonable suspicion that
he had committed an offence within the meaning of the above paragraph;
Whereas, in its partial decision of 6th July 1959 on the admissibility
of Application No. 343/57 (Nielsen against Denmark), the Commission
held that "in determining what is 'a reasonable suspicion of having
committed an offence' permitting the arrest or detention of a person
under Article 5, paragraph (1) (c) (Art. 5-1-c) regard must be had to
the circumstances of the case as they appeared at the time of the
arrest and detention ...";
Whereas, in the present case, when interrogated by the police, the said
Rafael made statements which incriminated the Applicant to such an
extent that the question arose, not unreasonably, whether or not the
Applicant was implicated in the illegal transactions imputed to Rafael;
Whereas the Commission finds that, in the light of the circumstances
of the case such as it presented itself to the Austrian authorities in
July 1962, it cannot be excluded that there was a reasonable suspicion
in the view of the Austrian authorities, that the Applicant had
committed offences under the provisions of the Criminal Code; whereas,
consequently, the Applicant's arrest on 12th July 1962 and his
subsequent detention have not resulted in a violation of Article 5,
paragraph (1) (c) (Art. 5-1-c) of the Convention;
Whereas it follows that this part of the Application is manifestly
ill-founded and must be rejected in accordance with Article 27,
paragraph (2) (Art. 27-2), of the Convention;
As regards the alleged violation of Article 5, paragraph (2) (Art. 5-2)
Whereas Article 5, paragraph (2) (Art. 5-2), of the Convention provides
as follows: "Everyone who is arrested shall be informed promptly ...
of the reasons for his arrest and of any charge against him";
Whereas the Applicant alleges that he was not so informed of the
reasons for his arrest and of the charges against him; whereas it is
pointed out that, in connection with the investigation of the case
which led to his arrest on 12th July 1962, the Applicant had previously
been detained for a period of eleven weeks, namely, from 24th February
until 12th May 1961, that he had been interrogated in detail by the
investigating judge on 3rd, 4th, 5th and 6th July 1962, which was 2
weeks prior to his arrest, and that he was confronted with the said
Rafael on 10th and 11th July 1962; whereas the Commission is thus
satisfied that the Applicant must have been fully aware of the reasons
for his arrest and the nature of the charges against him;
Whereas it follows that this part of the Application is manifestly
ill-founded and must be rejected in accordance with Article 27,
paragraph (2) (Art. 27-2) of the Convention;
As regards the alleged violations of Article 5, paragraph (3) and
Article 6, paragraph (1) (Art. 5-3, 6-1) of the Convention, in that the
Applicant has been detained pending trial for a period of almost two
years.
Whereas Article 5, paragraph (3) (Art. 5-3) of the Convention provides
as follows: "Everyone arrested or detained in accordance with the
provisions of paragraph (1) (c), of this Article (Art. 5-1-c)... shall
be entitled to trial within a reasonable time or to release pending
trial. Release may be conditional by guarantees to appear for trial."
Whereas the Applicant alleges that this detention pending trial for a
period of almost two years violates the above provisions;
Whereas the Respondent Government has submitted that, in view of the
complexity of the case and the difficulties of the investigation of the
charges against the Applicant, such period is not excessive nor
unreasonable and that the Application is, in this respect, manifestly
ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2)
of the Convention;
Whereas it is true that Article 27, paragraph (2) (Art. 27-2) of the
Convention requires the Commission to declare inadmissible any
application from an individual which it considers to be "manifestly
ill-founded";
Whereas, in a series of previous decisions concerning the question of
the length of detention pending trial, the Commission has held that the
above provisions of Articles 5 and 6 (Art. 5, 6) do not lay down any
definite standard, but should be interpreted according to the
circumstances of each case (See Applications Nos. 530/59 - S. v. the
Federal Republic of Germany - Collection of Decisions, Volume 8, page
46 and 1546/62 - ibid., Volume 9, page 58); whereas in these cases the
Commission found, on various grounds, that the special circumstances
of the cases concerned justified periods of detention which were only
slightly shorter than the period of almost two years which is under
review in the present case;
Whereas in the present case, however, a preliminary examination of the
information and arguments submitted to the Commission by the Parties
does not enable it to determine here and now whether the special
circumstances invoked by the Respondent Government are of such a nature
so as to exclude any possibility of such violation; whereas it follows
that the Applicant's complaints in regard to the refusal to release him
on reasonable terms and to the length of his detention pending trial
cannot be regarded as manifestly ill-founded within the meaning of
Article 27, paragraph (2) (Art. 27-2) of the Convention and cannot be
declared inadmissible on that ground;
As regards the alleged violation of Article 6, paragraph (1) (Art. 6-1)
as read in conjunction with Article 5, paragraphs (3) and (4)
(Art. 5-3, 5-4) of the Convention
Whereas Article 6, paragraph (1) (Art. 6-1) of the Convention provides
that: "In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to fact and
public hearing ..."; and whereas Article 5, paragraph (4) (Art. 5-4)
provides that: "Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the lawfulness
of his detention shall be decided speedily by a court ..."
Whereas the Applicant alleges that, during the proceedings by which the
lawfulness of his detention was decided, he did not receive a fair
hearing within the meaning of Article 6 (Art. 6) in that the Public
Prosecutor was present at the session of the Court while the Applicant
and his lawyer were excluded; whereas, in this respect, he has referred
to the findings of the Commission in its Report on Applications Nos.
596/59 (Pataki) and 789/60 (Dunshirn);
Whereas the Respondent Government has submitted that Article 6
(Art. 6) does not apply to the proceedings mentioned in Article 5,
paragraph (4) (Art. 5-4), and aimed at deciding the question whether
or not the Applicant should be released on bail or detained for a
further period of time;
Whereas, in its decision on the admissibility of Application No.
1599/62 (X. v. Austria - Collection of Decisions, Volume 10, page 5)
the Commission stated as follows: "Whereas, ..., insofar as the
Applicant complains that the proceedingsheld in 1961 before the Court
(Oberlandesgericht) in A. were not held in the presence of both parties
and that it was the duty of this Court to give a decision on the
continued detention of X; whereas, therefore, it was the duty of the
Court to settle a dispute as to the right of the accused as to his
liberty, guaranteed by Article 5 (Art. 5) of the Convention; whereas,
it might be asked whether such dispute did not relate to a civil right
in the sense of Article 6 (1) (Art. 6-1) of the Convention;
Whereas, the procedure referred to would, in that event, raise problems
in respect of the latter provision as regards the "equality of arms"
between the prosecution and the defence (Waffengleichheit);";
Whereas, in that Application, the Commission was, however, not called
upon to pursue, the matter as the Applicant had failed to comply with
the provisions of Article 26 (Art. 26) of the Convention; whereas in
the present case, however, the Applicant has duly complied with these
provisions;
Whereas the Commission finds that, at the present stage of the
proceedings, it cannot be excluded that the lack of "equality of arms"
between the prosecution and the defence during the proceedings before
the Regional Court of Vienna in respect of the Applicant's request for
release might have resulted in a denial of "fair hearing" within the
meaning of Article 6, paragraph (1) (Art. 6-1) of the Convention;
whereas it follows that this part of the Application cannot be declared
inadmissible as being manifestly ill-founded; As regards the alleged
violation of Article 6, paragraph (3) (b) and (c) (Art. 6-3-b, 6-3-c)
of the Convention
Whereas, apart from referring to this paragraph in his Application
form, the Applicant has not pursued this issue during the subsequent
proceedings before the Commission;
Whereas the Respondent Government has made no particular submissions
on the issue;
Whereas, in these circumstances, the Commission does not find it
necessary to make any findings on this alleged violation of the
Convention;
Now therefore the Commission
rejects the objection made by the Respondent Government as to the
admissibility of the Application in its entirety; rejects, however as
being manifestly ill-founded the allegations made by the Applicant in
respect of Article 5, paragraph (1) (c) and (2) (Art. 5-1-c, 5-2) of
the Convention, but, declares ADMISSIBLE and retains the allegations
made by the Applicant in respect of Articles 5, paragraph (3)
(Art. 5-3) and 6, paragraph (1) (Art. 6-1) and of Article 6, paragraph
(1) (Art. 6-1) as read in conjunction with Article 5, paragraphs (3)
and (4) (Art. 5-3, 5-4) of the Convention.
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