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Within the space of 5 months in 1962 and 1963, the Applicant filed no
fewer than 28 applications and complaints calling for an answer or a
decision by the examining magistrate. As was clear from a letter
addressed by the Applicant to his legal adviser, Dr. Ada Tammy, on 5th
February 1963, all these applications and complaints were part of a
deliberate manoeuvre to obtain the replacement of the present examining
magistrate, who was thoroughly conversant with the facts of the case,
by another magistrate. This assumption was strengthened by a statement
in the same letter to the effect that Stögmüller's primary objective
was not his release but a change of magistrate. There were consequently
strong grounds for supposing that, when he discovered that the
examining magistrate was unusually familiar with business transactions
and was thoroughly acquainted with the content of the file, Stögmüller
began to bombard him with applications and complaints in an attempt to
impede the progress of the enquiry.
From a report by the examining magistrate, dated 10th January 1963, it
emerges that Stögmüller was heard by the police authorities on most of
the accusations. It was, however, only possible to hold a detailed and
exhaustive hearing on three accusations because plans for further
hearings had to be interrupted by reason of Stögmüller's motion of 26th
June 1962 challenging the examining magistrate. Since the files had to
be submitted to the higher Court authorities for the examination of
further motions of challenge and complaints, the examining magistrate
had no access to them for six months.
The case-file now consists of 15 volumes averaging 500 pages each and
60 ancillary files. Owing to the large number of offenses and the
complicated nature of the subject-matter, not to mention the attitude
of the accused, investigation was proving extremely difficult. In
particular, the Applicant had refused, as a matter of principle, to
sign a summary record and insisted on verbatim reports of his
statements. Since the examining magistrate did not deny him this right,
his statements on one single accusation often covered as many as 30
typewritten pages. In examining about 70 of the 80 transactions under
review, the examining magistrate had so far heard more than 130
witnesses from all over Austria and in most cases, such evidence had
not been obtained by letters rogatory but personally. The offenses
committed by Stögmüller involve transactions that were deliberately
complicated and, in order to unravel them, the examining magistrate had
to know the entire content of the file relating to each accusation. It
was submitted that the investigation of the accusations against the
Applicant had been carried out with reasonable speed.

The Respondent Government, moreover, referred to the legal
interpretation given by the Commission to the concept "person charged
with a criminal offense." It was immaterial whether "accused"
("Beschuldigte" - i.e. still under investigation) or "defendant"
("Angeklagte") was meant by that term. The former was by Austrian law
assured of the shortest possible period of detention (Section 190,
paragraph 1 (2) of the Code of Criminal Procedure), and the latter (the
"defendant", i.e. person committed for trial after the indictment has
been drawn up) was equally assured of the most expeditious conduct of
the remaining part of the proceedings by virtue of Section 120 (1) of
the Code of Criminal Procedure.

The Respondent Government concluded that, in these circumstances,
Article 6, paragraph (1) was not violated and that this part of the
Application was manifestly ill-founded.

The Applicant submitted that he had not been brought to trial within
a reasonable time. The investigation of the accusations against him was
opened in December 1957 and was not yet completed.
If the accusations against him were so complex as contended by the
Respondent Government, it was clearly insufficient to assign only one
magistrate to deal with the case. Moreover, it was unnecessary for that
magistrate to hear in person all the witnesses who lived in various
parts of Austria. It would have been more expedient to obtain their
statements by letters rogatory.
He contested that his various applications and complaints had
necessitated a 13 months interruption of the proceedings. He pointed
out that he had not lodged any of these complaints until the autumn of
1962, that is, more than one year after his second arrest. They were
a result of the apparent lack of activity on the part of the examining
magistrate and of the exasperating slowness with which the
investigation progressed. They were not, as alleged by the Government,
an attempt to obstruct the progress of the proceedings.
In respect of the Article 6, paragraph (1) of the Convention in that
the examining magistrate does not carry out the investigation against
the Applicant in an impartial manner.

The Respondent Government submitted that the Applicant's subjective and
therefore immaterial criticisms of the examining magistrate were
manifestly ill-founded and inadmissible.

The Applicant submitted that the examining magistrate carried out his
investigations against the Applicant in an impartial and deliberately
prolonged manner. He added that the magistrate shielded Dr.
Standhartinger, who was also accused and who was related to a judge in
the Vienna circuit.

In respect of Article 6, paragraph (3), of the Convention

The Respondent Government submitted that the Applicant could not be
regarded as "a person charged with a criminal offence" within the
meaning of the above paragraph, as the investigation of the accusations
had not yet been completed. The very purpose of an enquiry, such as was
undertaken against the Applicant, was to establish the facts with a
view either to stopping any criminal proceedings contemplated or to
formulating an indictment against him.
It was further submitted that the Applicant had not adduced any
evidence which had not been taken into consideration in the
investigation. The Applicant submitted that, when a person is detained
pending the investigation of accusations against him, he is within the
meaning of the above paragraph, "charged with a criminal offence". The
examining magistrate had failed to take into account evidence and
testimony in the Applicant's favour.

THE LAW

As regards the alleged violations of Article 5, paragraph (1) (c)
(Art. 5-1-c) and of Article 6, paragraph (1) (Art. 6-1) in that
respectively there had been no reasonable suspicion to justify the
Applicant's arrest and in that the examining magistrate did not carry
out the investigation in an impartial manner.

Whereas, on 7th July 1964, the Commission examined the present
Application in regard to the above allegations; whereas, on that
occasion the composition of the Commission was as follows: MM
Eustathiades, presiding, Beaufort, Sørensen, Ermacora, Castberg,
Fawcett, Maguire, Triantafyllides, Welter and Balta;

Whereas, in respect of the alleged violation of Article 5, paragraph
(1) (c) (Art. 5-1-c), it pointed out that the Article provided 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, 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 view of the multitude of accusations made against the
Applicant by private persons who had business contacts with him, the
Commission felt that the arrest of the Applicant on 25th August 1961
could not be said to have been made in violation of the above Article
(Art. 5-1-c); whereas it followed that this part of the Application was
considered to be manifestly ill-founded and rejected in accordance with
Article 27, paragraph (2) (Art. 27-2) of the Convention;

Whereas the Commission further held, in respect of the alleged
violation of Article 6, paragraph (1) (Art. 6-1), that the Applicant
had failed to submit any evidence to support his allegation that the
investigation proceedings, even though progressing very slowly, were
not conducted in an impartial manner by the examining magistrate;
whereas it followed that this part of the Application was also
considered to be manifestly ill-founded and rejected in accordance with
Article 27, paragraph (2) (Art.27-2) of the Convention;

As regards the remaining parts of the Application

Whereas during the oral hearing held before the Commission on 1st
October 1964 the Applicant's lawyer, Dr. Tammy, stated that he only
maintained his claim in regard to the alleged violation of Article 5,
paragraph (3) (Art. 5-3) of the Convention by reason of the Applicant's
detention for periods totalling 2 years and 7 weeks;

Whereas it is thus clear that the Applicant withdrew his remaining
allegations under Article 6, paragraphs (1) and (3) (Art. 6-1, 6-3) of
the Convention; Whereas in these circumstances the Commission decides
not to avail itself of its competence further to examine ex officio
these allegations; Whereas, consequently, the only question upon which
the Commission has to decide is whether or not the Applicant's
detention from 3rd March to 21st April 1958 and from 25th August 1961
to 26th August 1963 constitutes a violation of Article 5, paragraph (3)
(Art. 5-3) of the Convention; 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 more than 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, in a series of previous decisions
concerning the question of the length of detention pending trial, the
Commission has held that the above provision of Article 5 (Art. 5) does
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 - Yearbook III, page 184, 920/60 -
W. 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 under review in the
present case;

Whereas, on the other hand, in its decision on the admissibility of
Application No. 1936/63 (Had v. Austria) the Commission held that it
could not consider manifestly ill-founded an allegation that a period
of detention of almost two years was in violation of the above
provision;

Whereas the Commission also refers to its decision of 2nd July 1964 by
which it decided admissible Application No. 2122/64 (Wemhoff v. the
Federal Republic of Germany).

Whereas Article 27, paragraph (2) (Art. 27-2) of the Convention in
requiring the Commission to declare inadmissible any application from
an individual which it considers to be "manifestly ill-founded", does
not permit the Commission to reject an application whose lack of
foundation cannot be so described (see Applications No. 1727/62 -
Collection of Decisions, Volume 12, page 29 and No. 2122/64).

Whereas, in the present case, the Commission has carried out a
preliminary examination of the information and arguments submitted to
the Commission by the Parties. Whereas the Commission finds that the
Applicant's complaints are of such complexity that their determination
should depend upon an examination of the merits of the case; whereas
it follows that they 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;

Now therefore, to the extent that the present Application was not
decided by the Commission in its session on 7th July 1964 and was
maintained by the Applicant during the oral hearing on 1st October
1964, the Commission declares it ADMISSIBLE and retains it for further
examination in accordance with Articles 28 et seq. (Art. 28) of the
Convention.
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