[align=left]Whereas the same reasoning applies in regard to the applicant's
complaint under Article 6, paragraph (1) (Art. 6-1), of the Convention,
concerning the proceedings before the Constitutional Court;
Whereas this provision states that:
"In the determination of his civil rights and obligations ... everyone
is entitled to a fair ... hearing ... by an independent and impartial
tribunal established by law ...;"
Whereas the applicant alleged that, insofar as the constitutional
appeal was an extraordinary remedy under Austrian law, he was denied
access to a court as guaranteed by the above provision; and,
furthermore, that the refusal on the part of the Constitutional Court
to deal with his allegations of bias of certain members of the Regional
Real Property Sales Commission at Linz constituted a violation thereof;
whereas the respondent Government has submitted that Article 6,
paragraph (1) (Art. 6-1), of the Convention did not guarantee a right
to proceedings before a court of law but simply laid down basic rules
or procedure where national legislation makes provisions for judicial
proceedings; whereas the respondent Government has further submitted
that the aforesaid provision was not applicable to proceedings
concerning the approval of sales contracts by the Regional Real
Property Sales Commission as such proceedings did not involve the
determination of civil rights within the meaning of that provision;
Whereas the Commission has made a preliminary examination of the
information and arguments submitted by the parties with regard to the
above complaints; whereas the Commission considers that these
complaints raise important questions under Article 6, paragraph (1)
(Art. 6-1), of the Convention; whereas, in particular, they call for
an interpretation of the notion "determination of civil rights by a
tribunal" within the meaning of that provision; whereas the Commission
finds again that the issues presented by the said complaints are of
such complexity that their determination should depend upon an
examination of their merits; whereas it follows that they also cannot
be regarded as manifestly ill-founded within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention;
Whereas, therefore, the applicant's complaints under Article 5,
paragraph (3), and Article 6, paragraph (1) (Art. 5-3, 6-1), of the
Convention in relation to the length of his detention on remand and of
the criminal proceedings against him as well as his complaints under
Article 6, paragraph (1) (Art. 6-1), of the Convention in relation to
the proceedings before the Constitutional Court cannot be declared
inadmissible as being manifestly ill-founded in accordance with Article
27, paragraph (2) (Art. 27-2), of the Convention; and whereas no other
ground for declaring these parts of the application inadmissible has
been found;
D. As regards the alleged violation of Article 5, paragraph (4)
(Art. 5-4) of the Convention, in relation to the procedure followed in
deciding on applications for release pending trial
Whereas, in regard to the applicant's complaint, submitted during the
oral hearing before the Commission, that the decisions relating to his
detention on remand were given after the court had heard the
prosecuting authority, but in the absence of the applicant or his
lawyer; whereas, in this respect, the applicant alleges a violation of
Article 5, paragraph (4) (Art. 5-4) of the Convention which grants to
every detained person the right "to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful" (emphasis added);
Whereas the Commission again had regard to the judgment of 27th June,
1968, given by the European Court of Human Rights in the "Neumeister"
case; whereas in that case the Court held that Article 5, paragraph (4)
(Art. 5-4) of the Convention simply provided that proceedings against
detention on remand should be allowed and be taken before a "court",
namely an authority possessing judicial character, that is being
independent both of the executive and of the parties to a case, but
that this provision did not relate to the procedure to be followed;
whereas the Court further stated that the main concern of the above
provision was that remedies concerning detention on remand should be
determined speedily and that, consequently, full written proceedings
or an oral hearing of the parties in the examination of such remedies
were a source of delay which should be avoided in this field;
Whereas the Commission by a majority vote had reached a similar
conclusion in the "Neumeister" case (cf. Report 1936/63 of 27th May,
1966, p. 87); whereas the facts and the arguments submitted by the
applicant in the present case do not disclose any grounds which would
compel the Commission to deviate for its previous opinion and from the
holding of the European Court of Human Rights; whereas the Commission
consequently finds that this part of the application does not disclose
any appearance of a violation of the rights and freedoms set forth in
the Convention and, in particular in Article 5, paragraph (4)
(Art. 5-4) of the Convention, whereas it follows that, in this respect,
the application is manifestly ill-founded and must be rejected in
accordance with Article 27, paragraph (2) (Art. 27-2), of the
Convention;
Now therefore the Commission
1. rejects the general objections made by the respondent Government as
to the admissibility of the application in their entirety (cf. A
above);
2. rejects as being manifestly ill-founded the allegations by the
applicant in respect of Article 5, paragraph (4) (Art. 5-4) of the
Convention (cf. D above); but
3. declares admissible and retains without in any way prejudging the
merits of the case, the allegations made by the applicant in respect
of Article 5, paragraph (3) and Article 6, paragraph (1)
(Art. 5-3, 6-1), of the Convention as regards the length of his
detention on remand and the length of the criminal proceedings against
him, and of Article 6, paragraph (1) (Art. 6-1), of the Convention, as
regards the proceedings before the Constitutional Court (cf. B. and C
above).[/align]
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