[align=left]
The Explosives Act had originally been deemed a purely political Act
and Article 13 of the Act established in principle the competence of
the Court of Assizes in regard to offenses punishable under Articles
4, 5, 6 and 8. However, this rule, which had already been invalidated
by the Code of Criminal Procedure Amendment Act of 1920, was finally
repealed by the Criminal Code Amendment Act of 1934. Thereafter, only
the acts enumerated in Article VI, No. 1 of the Introductory Act to the
Code of Criminal Procedure, later incorporated in Article 14 (a)
paragraph (1) of this Code, constituted clearly political offenses
coming within the exclusive competence of courts of assizes according
to Article 91, paragraph (2) of the Federal Constitution
(Bundes-Verfassungsgesetz). Criminal acts punishable under the
Explosives Act were not mentioned in this list. It followed that they
were not in themselves political offenses although, in the light of the
underlying motive or purpose, they might constitute such offenses. In
a decision of 1963, the Supreme Court accordingly ruled that in the
present legal situation the Schöffengerichte were competent to judge
alleged violations of the Explosives Act. In the Government's opinion,
the Applicant had not committed a clearly political offense. There were
no concrete clues pointing to a violation of Article 10 of the National
Security Act and this offence was therefore not included in the
indictment. When the Schöffengericht of Graz, by its decision of ..
May, 1965 dismissed the motion of counsel for the defence that it
should at once declare itself not competent, the Court subscribed to
the legal view set out above. The decision of non-competence which it
gave on .. May, 1965, left the general legal situation unchanged.
The Government concluded that, in the above circumstances, a
"reasonable time" within the meaning of Article 6, paragraph (1) of the
Convention had not been exceeded in the Applicant's case. It followed
that the remainder of the Application was also manifestly ill-founded.

III. In his reply of .. April, 1967, the Applicant maintained his
complaints under Articles 5 and 6 of the Convention.

1. He objected to the Government's observation that, in respect of the
alleged violation of Article 5, paragraph (3), he had failed to exhaust
the remedies available to him under Austrian law. He stated that an
appeal against detention lodged immediately after his first or second
arrest would have been unsuccessful as even his petitions for release
introduced at later stages of his first and his second detention were
rejected by the competent courts. The Applicant also submitted that he
failed to lodge premature appeals because he did not want to protract
the investigation unnecessarily. He considered that the Respondent
Government could not, on the one hand, reproach him for not having
taken his complaint concerning detention before every instance when it
alleged, on the other hand, that the length of this detention was due
to the large number of appeals filed by him.

2. In the Applicant's opinion, neither his complaint under Article 5,
paragraph (3), nor that under Article 6, paragraph (1), was manifestly
ill-founded as suggested by the Government. In this respect, he stated
that, after his second arrest on .. June, 1964, he was informed by the
investigating judge that the investigation was closed and that the file
had been finally sent to the Public Prosecutor's Office. It was clear
from Article 112 of the Austrian Code of Criminal Procedure that either
the Applicant should have been served with the indictment within 14
days or, in the absence of any grounds for further proceedings, the
case should have been closed. In fact, he did not receive the
indictment until .. February, 1965, that is to say three months after
the time-limit provided for by law, and then only after he had started
a total hunger strike which aroused considerable public interest.
Furthermore, he was indicted before the wrong court and this protracted
the whole case further. All the circumstances described by the
Schöffengericht in its ruling of lack ofjurisdiction were known to the
Public Prosecutor's Office from the beginning but were deliberately
ignored. Since the verdict of the Court of Assizes was set aside in
October 1965 a further 18 months had elapsed, so that even in this last
stage there had been unnecessary delay. The new trial was now to be
held between .. and .. May, 1967, before the Court of Assizes at Linz.
With regard to the period to be taken into consideration under Article
6, paragraph (1) of the Convention, the Applicant pointed out that
proceedings against him began with his arrest on .. August, 1961. Thus
they had already run for nearly six years, during which time, in
addition to his periodical detention pending trial, he had been
subjected to all kinds of other restrictions with regard both to the
exercise of his profession and to his freedom. Any attempt to deduce
from the wording of Article 6, paragraph (1) that, in criminal
proceedings, it applied only to persons who were already in possession
of the indictment was either to misunderstand the meaning of the
Convention or to twist its meaning to the exact opposite. For such a
limitation of this provision of "accused persons" would make it
possible for any State to subject a citizen to criminal investigation,
with all its disabilities, for an unlimited period; it would simply be
necessary for the Public Prosecutor's Office to delay delivery of the
indictment for as long as it chose as had happened in the present case.
In this connection the Applicant pointed out that throughout 1962, to
take one example, there was no significant action by either the
investigating judge or the Public Prosecutor's Office and, although the
investigation was for all practical purposes complete at the beginning
of that year, no indictment was preferred. This entailed the greatest
inconveniences for all the defendants concerned and it could not be the
intention of the Convention not to offer any protection against such
conduct. The Applicant concluded that the length of his detention and
of the proceedings against him originated not in any complexity of the
facts but in the political intentions of the prosecution which thought
to serve the higher interests of the State.
THE LAW

Whereas, with regard to the Applicant's complaint concerning the length
of his detention pending trial, Article 5, paragraph (3) (Art. 5-3) of
the Convention states that anyone arrested or detained in accordance
with paragraph (1) (c) of that Article (Art. 5-1-c) "shall be entitled
to trial within a reasonable time or to release pending trial from ..
August until .. December, 1961, and again from .. June, 1964 until ..
June, 1965;

Whereas the Commission has considered the question whether, for the
purpose of Article 5, paragraph (3) (Art. 5-3), the above two periods
of four months and one year respectively should be judged separately
or as a whole;

Whereas, further, with regard to the second period of detention, the
Commission has noted that it continued during the Applicant's trial
before the Schöffengericht of Graz and subsequently for one month
pending his trial before the Court of Assizes of Graz; whereas, in this
connection, the further question arises whether the period to be
considered under Article 5, paragraph (3) (Art. 5-3), of the Convention
ends at the date when the trial opens or continues until judgment is
passed by a court of first instance, or extends beyond that date until
the day of a final decision on appeal;

Whereas, however, the Commission does not feel called upon to decide
these questions in the present case as it finds that, even if the two
periods of the Applicant's detention, including the time between the
date of the opening of his trial before the Schöffengericht and the
date of his final release, were considered as a whole, there is in the
particular circumstances of the case no appearance of a violation of
Article 5, paragraph (3) (Art. 5-3) of the Convention;

Whereas, in this respect, the Commission recalls that, according to its
constant jurisprudence, the question whether a period of detention
pending trial is "reasonable" or not cannot be decided in abstracto but
must be determined in the light of the particular circumstances of each
case (see Application No. 2077/63, Yearbook of the European Convention
on Human Rights, Volume 7, pages 268 [276, 278], and Application No.
2516/65, Collection of Decisions of the Commission, Volume 20, pages
28 [35]);

Whereas, in the present case, the Commission has taken into account the
facts that the investigation was complicated because of the great
number of persons accused and of alleged offenses; that, after his
first release in 1961 on parole and bail, the Applicant fled the
country and, after later returning to Austria, lived there under a
false name; and that it does not appear that during his detention the
criminal proceedings against him were substantially prolonged through
the fault of the competent authorities;

Whereas, in view of all these circumstances, an examination of the case
does not disclose any appearance of a violation of Article 5, paragraph
(3) (Art. 5-3) of the Convention; whereas it follows that this part of
the Application is manifestly ill-founded within the meaning of Article
27, paragraph (2) (Art. 27-2) of the Convention;

Whereas, with regard to the Applicant's complaint concerning the
duration of the criminal proceedings against him, Article 6, paragraph
(1) (Art. 6-1) of the Convention states that, in the determination of
any criminal charge against him, everyone is entitled to a "hearing
within a reasonable time";

Whereas, in the opinion of the Respondent Government, the period of
"reasonable time" referred to in this provision does not begin until
the person concerned has been formally charged; and whereas, in support
of this view, the Government refers to the Commission's decisions on
the admissibility of Applications Nos. 1216/61 and 1545/62;

Whereas the Applicant objects to this interpretation of Article 6,
paragraph (1) (Art. 6-1) of the Convention; whereas he considers that
such a limitation of the scope of this provision would make it possible
for a Contracting State to subject a citizen to criminal investigation,
with all its disabilities, for an unlimited period, as it would simply
be necessary for the Public Prosecutor to delay delivery of the
indictment as long as he chose;

Whereas it is true that, in its decision on the admissibility of
Application No. 1216/61 (loc. cit. page 6), the Commission held that
a person against whom a criminal charge (öffentliche Klage) within the
meaning of the German Code of Criminal Procedure (Strafprozessordnung)
has not yet been brought is not a person "charged with a criminal
offense" within the meaning of Article 6, paragraph (3) (Art. 6-3) of
the Convention; and whereas, in its decision on the admissibility of
Application No. 1545/62 (loc. cit. page 276), the Commission stated
generally that the words "within a reasonable time" in Article 6,
paragraph (1) (Art. 6-1) "refer to the period that elapses between the
charge and sentence";

Whereas, however, in the case of Neumeister against Austria
(Application No. 1936/63) which is now pending before the European
Court of Human Rights, the Commission has again considered the question
at what stage the period of "reasonable time" referred to in Article
6, paragraph (1) (Art. 6-1) begins; whereas, in that case, it has
arrived at the general conclusion that the relevant stage is that "at
which the situation of the person concerned has been substantially
affected as a result of a suspicion against him"; and whereas, pending
a decision of the Court on this question, the Commission maintains the
opinion which it adopted in the Neumeister case;

Whereas it follows that, in the present case, the starting point taken
into account by the Commission for the purpose of deciding whether a
"reasonable time" within the meaning of Article 6, paragraph (1)
(Art. 6-1) has been exceeded is the date of the Applicant's first
arrest in the criminal proceedings against him, namely .. August, 1961;


Whereas the Commission has also considered the question whether the
requirement under Article 6, paragraph (1) (Art. 6-1) as to "reasonable
time" is satisfied where a trial is opened and the accused is heard by
a court of first instance within a reasonable time; alternatively,
whether it is necessary that during this time a judgment is given by
the court; or whether the period referred to in Article 6, paragraph
(1) (Art. 6-1) also includes any proceedings on appeal; whereas the
Commission does not feel called upon to decide this question in the
present case;

Whereas it finds that, even if the period of nearly six years which
elapsed between the Applicant's first arrest on .. August, 1961, and
the date of the Commission's present decision (30th May, 1967) were
fully taken into account, there is, in the particular circumstances of
the case, no appearance of a violation of Article 6, paragraph (1)
(Art. 6-1) of the Convention;

Whereas, in this respect, the Commission refers to the grounds set out
above in its finding regarding Article 5, paragraph (3) (Art. 5-3);

Whereas, in particular, the criminal proceedings against the Applicant
were substantially delayed by the fact that, in February 1963, he
absconded to Germany and that, after his return to Austria, he lived
there under a false name until he was re-arrested on .. June, 1964;
whereas, in the meanwhile, the charges against him have been tried in
judicial proceedings and decided upon by a judgment; and whereas he has
been finally acquitted of some of the charges;

Whereas it follows that the remainder of the Application is also
manifestly ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2) of the Convention.

Now therefore the Commission declares this Application inadmissible.
[/align]