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الموضوع: M.R. v. AUSTRIA - 2614/65 [1968] ECHR 7 (18 July 1968)

  1. #1

    افتراضي M.R. v. AUSTRIA - 2614/65 [1968] ECHR 7 (18 July 1968)

    [align=left]THE FACTS

    A. Whereas the facts presented by the parties and apparently not in
    dispute between them may be summarised as follows:

    The applicant is an Austrian citizen, born in 1921 in Hungary and
    resident in Vienna. He was an insurance agent and also concerned
    himself with dealings in real property.

    I. Proceedings before the Constitutional Court

    In 1961 the applicant intended to purchase certain property in Upper
    Austria from a couple named X. His plan was to divide this land up in
    plots and resell it. In accordance with this plan the applicant, on
    21st August, 1961, entered into a contract with X. relating to the sale
    of Plot Registry No. 704 at Neubau, and on 6th February, 1962, another
    contract was signed by them relating to Plot Registry Nos. 57 and 222
    at Annaberg. The present application is concerned with Plots Nos. 57
    and 222 at Annaberg only.

    However, this contract between the applicant and Mr. and Mrs. X. never
    took effect. Under Article 1 of the Act relating to the Approval of
    Transactions concerning Agricultural and Forestry Land (Gesetz über die
    Genehmigung des Land- und Forstwirtschaftlichen Grundverkehrs) of Upper
    Austria, dated 26th May, 1954, the transfer of ownership by contract
    inter vivos with regard to plots of land destined as a whole or in part
    for forestry or agricultural use is subject to approval by a Real
    Property Sales Commission (Grundverkehrskommission) set up for this
    purpose. In pursuance of this provision the applicant, on 30th March,
    1962, submitted the contract of 6th February, 1962, to the District
    Real Property Sales Commission (Bezirksverkehrskommission) at Efording
    for its approval. This was refused by decision of 28th September, 1962,
    on the grounds that the property was acquired for speculation and would
    be diverted from its established use as farmland. The applicant
    appealed (Berufung) against this decision to the Regional Real Property
    Sales Commission (Landesgrundverkehrskommission) at Linz. The
    Commission held a non-public sitting on 12th February, 1963, and
    decided personally to inspect the premises. This was accomplished on
    2nd April, 1963. Subsequently, on 13 May, 1963, the Regional Commission
    dismissed the appeal in a non-public session on the ground that the
    conveyance contravened Article 4, paragraph (1), of the Upper Austrian
    Act relating to the Approval of Transactions concerning Agricultural
    and Forestry Land, which provides in substance that such conveyances
    must correspond to the public interest in creating and maintaining
    areas reserved for agriculture and forestry, in maintaining and
    strengthening the efficiency of persons engaged in agriculture and
    similar purposes. At this session certain members of the Commission who
    had not been present at the previous sessions took part in the
    deliberation and decision. Upon a constitutional appeal
    (Verfassungsbeschwerde) lodged by the applicant with the Constitutional
    Court (Verfasssungsgerichtshof) the decision of the Regional Commission
    was set aside for the above reason, on 20th June, 1964.

    On 3rd February, 1965, the Regional Property Sales Commission at Linz
    once more dismissed the applicant's case. By the same decision the
    Commission rejected the applicant's challenge of several of its members
    on grounds of bias. The applicant subsequently again lodged with the
    Federal Constitutional Court a constitutional appeal against this
    decision. He alleged again that his constitutional rights were violated
    in that the Regional Commission's decision was taken by biased members
    of the Commission and, having regard to the substantive issues of the
    case, was arbitrary. He stated that the bias of the Commission members
    consisted in the fact that the Presiding Member had appeared as
    representative of the Commission in earlier proceedings before the
    Constitutional Court, that another member had been heard as a witness
    in these proceedings, that another member had made a statement to the
    effect that the contract could not be approved because another contract
    relating to the same premises had already been approved, that yet
    another member had made a statement as leading member of the Chamber
    of Agriculture (Landwirtschaftskammer) for Upper Austria to the effect
    that the contract should not be approved and, finally, that two members
    had participated in the previous decision of the Regional Commission
    rejecting his application for approval of the contract. The applicant
    further alleged that the same members who had decided his case on 13th
    May, 1963, decided it again on 3rd February, 1965, and this constituted
    a violation of his right to a trial by a tribunal established by law
    (gesetzmässiger Richter) as had been held by the Constitutional Court
    in its previous decision of 20th June, 1964.

    The Constitutional Court, on 27th September, 1965, dismissed the appeal
    on the ground that, assuming that certain members of the Regional
    Commission had in fact been biased, the applicant had no right to
    challenge these members because a board does not lose its competence
    to take a decision even where several of its members are biased. The
    Court further held that no question as to the proper establishment of
    the Commission arose as it had given a new decision on 3rd February,
    1965, and had not simply continued the previous proceedings and
    further, that the decision was not arbitrary.

    II. Criminal proceedings

    1. Proceedings for fraud etc. (19 Vr 394/63)

    In the meanwhile while the proceedings before the Real Property Sales
    Commission were pending, the applicant had started to divide up the
    land which he considered that he had acquired from X. and to sell
    separate plots to various buyers.

    However, on 13th February, 1063, Mr. and Mrs. X. laid charged against
    him with the Public Prosecutor's Office (Staatsanwaltschaft) at Linz.
    They informed the Office that the applicant had fraudulently converted
    to his own use the property owned by them in that he had inscribed the
    priority ranking (Rangvermerkung), and the registration (Eintragung),
    of various mortgages in the Land Registry (Grundbuch) relating to Plots
    Registry Nos. 52 and 222 at Annaberg. Subsequently, further charges
    were laid with the Public Prosecutor's Office at Linz on the ground
    that the applicant had made with a number of proposed purchasers
    contracts for the sale of real property which were not capable of being
    put into effect.[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  2. #2

    افتراضي

    [align=left]
    After charges of fraud had also been laid against the applicant by
    several buyers of plots, the investigating judge (Untersuchungsrichter)
    at Linz, on 30th July, 1963, issued a warrant for his arrest, in
    accordance with Article 175, paragraph (1), sub-paragraph 4, of the
    Code of Criminal Procedure (Strafprozessordnung) under which a warrant
    of arrest may be issued where there are special reasons to fear that
    the accused will commit further offenses. In the present case the
    investigating judge found that this condition was fulfilled owing to
    the fact that the applicant had continued to offer plots of land for
    sale although he knew that the Real Property Sales Commission had
    refused to approve the contract of 6th February, 1962, between himself
    and Mr. and Mrs. X.

    On 5th August, 1963, the applicant was arrested at Linz and remanded
    in custody in accordance with Article 175, paragraph (1), sub-paragraph
    4, and 180, paragraph (1), of the Code of Criminal Procedure. The order
    remanding him in custody was later extended to cover the ground
    mentioned in sub-paragraph 3 of paragraph (1) of Article 175, namely
    that there was also the danger of the applicant's suppressing evidence.

    The applicant made an application for release pending trial
    (Haftbeschwerde) which was dismissed by the Judges' Chamber of the
    Regional Court (Ratskammer des Landesgerichts) of Linz on 4th
    September, 1963. His appeal to the Court of Appeal (Oberlandesgericht)
    at Linz was rejected on 23rd September, 1963. Both courts considered
    that the grounds for the applicant's detention on remand continued to
    obtain.

    The applicant made a further application for release pending trial to
    the investigating judge which was refused on 7th November, 1963, and
    his appeal to the Judges' Chamber of the Regional Court of Linz was
    rejected on 19th November, 1963. The applicant then lodged with the
    Court of Appeal at Linz a further appeal against the decision of the
    Judges' Chamber and at the same time submitted evidence to the effect
    that he had taken measures for guaranteeing any claims for the
    restitution to the buyers concerned of their purchase monies. In fact,
    the applicant had inscribed the priority ranking of a mortgage on
    property owned by him at St. Peter in the Land Registry and this entry
    should be effective until 4th October, 1964. On 19th December, 1963,
    the Linz Court of Appeal decided that the applicant should be released
    from detention on giving his solemn undertaking in accordance with
    Article 191 of the Code of Criminal Procedure. This provision states
    that, where an accused is released from detention on remand, the
    investigating judge may require him to undertake not to leave his place
    of residence without authorization before the final termination of the
    proceedings against him, nor to conceal himself nor to do anything
    which might impair the investigation of the case.

    The applicant was accordingly released on 23rd December, 1963, after
    having made a solemn undertaking in accordance with the above
    provision.

    In the meanwhile, further buyers of plots had laid charges against the
    applicant and, during 1964 and early 1965, the investigations were
    continued. In August 1964 the applicant also took proceedings with a
    view to transferring his case to the jurisdiction of another court but
    without success.

    By indictment of 13th April, 1965, the Public Prosecutor's Office at
    Linz charged the applicant as follows:

    I. having falsely pretended, between 3rd November, 1958, and 5th April,
    1963, to be an honest real estate seller, borrower and agent with a
    view to induce

    A. 78 persons to acts detrimental to them, namely to make payments of
    some 1.4 million Schillings, and
    B. 2 other persons, i.e.
    1. A.
    2. B. to grant loans in a total amount of AS 89,000.- and

    II. having misused the power delegated to him by a contract to dispose
    of other people's property or engage a third party, by way of misusing,
    with intent of profit, the authenticated power of attorney delegated
    to him by Mr. and Mrs. X. on 9th August, 1962; and with having thereby
    caused damage to Mr. and Mrs. X, viz.

    1. on 4th October, 1962, by having inscribed a priority ranking for
    mortgage of AS 600,000.- and on 28th December, 1962, by registration
    of a mortgage in respect of a loan of AS 600,000.-;

    2. on 5th December, 1962, by registration of a mortgage of AS
    5000,000.-;

    3. on 14th May, 1963, by having inscribed a priority ranking for a
    mortgage of another AS 500,000.- on the real estate owned by Mr. and
    Mrs. X, as recorded under Nos. 57 and 222 in the land register of
    Annaberg;

    4. by concluding a lease contract qualified for registration concerning
    these real properties in favour of Mrs. C., his common-law wife
    (Lebensgefährtin);

    5. on 23rd January, 1963, by concluding a lease contract qualified for
    registration in respect of the real properties owned by Mr. and Mrs.
    X. in favour of the couple D.

    The applicant was accordingly charged with fraud (Betrug) under
    Articles 197, 200, 201 d, 203, and fraudulent conversion (Untreue)
    under Article 205 c of the Criminal Code.

    When submitting the indictment the said Public Prosecutor's Office also
    requested that the applicant should again be remanded in custody on the
    grounds laid down in Article 175, paragraph (1), sub-paragraphs 2 and
    4, 180, paragraph (1), of the Code of Criminal Procedure. This request
    was based on the fact that the priority ranking of a mortgage in the
    amount of two million Schillings, by which the applicant had previously
    guaranteed his creditors' claims and which had been decisive for his
    release on 23rd December, 1963, had expired on 4th October, 1964, and
    he had failed to cause a new such ranking to be entered in the Land
    Registry relating to his property at St. Peter. Furthermore, enquiries
    made with credit institutions at Linz had revealed that the applicant
    kept concealed considerable sums which he might use to abscond in view
    of the indictment against him. Finally, if left at large, the applicant
    would have an opportunity to allow the damage to become irrevocable and
    to commit further offenses at an time.

    When making this request for his detention, the applicant had already
    been in custody since 15th March, 1965, with respect to the proceedings
    against him for fraudulent bankruptcy (see below). On 12th May, 1965,
    the investigating judge at Linz, pursuant to the prosecution's request,
    made an order for the applicant's detention on remand with respect to
    the proceedings against him for fraud and fraudulent conversion.

    On 19th May, 1965, the Linz Court of Appeal took a decision rejecting
    the applicant's appeal (Einspruch) against the indictment. In this
    decision the Court of Appeal also decided that his detention on remand
    should continue. A further appeal against this decision was withdrawn
    by the applicant on 8th June, 1965.

    In the meanwhile, he had made another application to the courts that
    his case should be referred to a court outside the jurisdiction of the
    Linz Court of Appeal. This application, submitted to the Supreme Court
    (Oberster Gerichtshof) on 11th June, 1965, was refused on 8th July,
    1965.

    Next, the Court of Appeal at Linz was called upon to take a decision
    as to the applicant's challenge of all the judges of the Linz Regional
    Court. Before taking a decision the Court of Appeal made an order to
    the effect that the applicant should set out in clear terms the grounds
    of his challenge. In compliance with this order the authorities, on 6th
    September, 1965, took a written statement from the applicant by which
    he withdrew the said challenges except as regards the one District
    Court Judge (Bezirksrichter), Dr. F. In this respect, his challenge was
    rejected by decision of the President of the Linz Regional Court, dated
    13th September, 1965.

    On 3rd November, 1965, the Linz Regional Court fixed the date of the
    applicant's trial for 13th December, 1965. The applicant refused to
    acknowledge this date and, at the same time, made a new request for a
    change of venue. He also requested that the trial should be cancelled.
    By three further petitions and one submission to the Regional Court
    entitled "complaint", all dated 4th December, 1965, the applicant
    repeated his above requests alleging generally that the proceedings
    opened against him were unlawful. On 6th December, 1965, the Regional
    Court declared that his request for change of venue would not be dealt
    with as the Supreme Court had already twice rejected his similar
    requests. The applicant was further informed that under the applicable
    law it was not possible to cancel the trial.

    Consequently, the trial opened before the Linz Regional Court on 13th
    December, 1965. It continued until 16th December, 1965, when the
    hearing was adjourned by reason of applications made by both the
    prosecuting authority and the counsel for the defence to the effect
    that further evidence should be obtained. The Court also decided that
    the trial should continue on 13th January, 1966.[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  3. #3

    افتراضي

    [align=left]During the period from 16th December, 1965, to 13th January, 1966, the
    applicant made another application for release pending trial which was
    refused by the Linz Regional Court on 28th December, 1965. He also
    requested once more that his case should be transferred to the
    jurisdiction of another court and submitted a plea of nullity for
    safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes)
    by which he accused public prosecutors and judges of having violated
    the law. He was informed on 10th January, 1966, that his plea of
    nullity would be brought to the attention of the Attorney-General's
    Office (Generalprokuratur) when final judgment had been passed against
    him.

    The trial continued on 13th January, 1966, and was terminated on 14th
    January. On that day he was convicted for fraud with respect to counts
    I A (78 purchasers) and I B 1 (A.) of the indictment and sentenced to
    three years' severe imprisonment (hartes Lager) once every three
    months. He was acquitted of the other charges.

    The Court also decided that the applicant should be released from
    detention on a solemn undertaking in accordance with Article 191 of the
    Code of Criminal Procedure. The Office of the Public Prosecutor lodged
    an appeal (Beschwerde) against this decision which was allowed by
    decision of the Linz Court of Appeal, dated 2nd March, 1966. The Court
    decided that the grounds for the applicant's detention on remand
    continued to obtain (danger of his absconding and committing further
    offenses). It appears that, under the applicable Austrian law, this
    decision was taken after hearing the prosecuting authority but in the
    absence of the applicant or his lawyer.

    Both the Public Prosecutor's Office and the applicant, on 25th
    February, and 3rd March, 1966 respectively, lodged with the Supreme
    Court a plea of nullity (Nichtigkeitsbeschwerde) against the conviction
    and appeal (Berufung) against the sentence.

    The case files were transmitted to the Supreme Court in Vienna on 9th
    March, 1966, but were subsequently sent back to Linz for the Regional
    Court to deal with an application for release pending appeal which the
    applicant, in the meanwhile, had lodged. However, this application was
    withdrawn by the applicant on 30th June, 1966.

    On 27th July, 1966, the Supreme Court took a decision with regard to
    the pleas of nullity and appeals mentioned above. It decided that the
    Regional Court's decision should be set aside as regards the conviction
    for fraud under count I B (A.) and acquittal on the charge of
    fraudulent conversion, under count II (Mr. and Mrs. X.) of the
    indictment, as well as regards the sentence. However, the judgment
    should stand as regards the acquittal on the charges of fraud under
    count I B (B.) and the conviction for fraud under count I A (78
    purchasers) of the indictment. The case was accordingly sent back to
    the Linz Regional Court for further hearing and decision.

    On the application of the prosecuting authority the Linz Regional Court
    decided on 14th September, 1966, that the proceedings against the
    applicant as regards the charge of fraud under count I B (A.) and the
    charge of fraudulent conversion under count II of the indictment should
    be discontinued. Consequently, the only charge remaining was count I
    A (78 purchasers) of the indictment for which the applicant had been
    convicted but not sentenced.

    In the meanwhile, the applicant had lodged a further petition for his
    release pending appeal which was refused by the Regional Court of Linz
    on 21st September, 1966. On appeal to the Linz Court of Appeal this
    decision was confirmed on 28th September, 1966.

    The applicant also made various petitions relating to the manner in
    which the further hearing of his case which had been fixed for 18th
    October, 1966, should be conducted. These petitions were rejected on
    the ground that they could not properly be dealt with under the rules
    of procedure.

    On 14th October, 1966, the applicant requested that the hearing of 18th
    October, should be adjourned to a later date. This request was refused
    and, on 18th October, 1966, the Linz Regional Court fixed the
    applicant's sentence at five years' severe imprisonment with the
    additional penalty of fasting and "sleeping hard" once every three
    months. The Court further decided that the period from 5th August to
    23rd December, 1963, and from 15th March, 1965, to 18th October, 1966,
    which the applicant had spent in detention on remand should be credited
    towards his sentence.

    On 3rd November, 1966, the applicant lodged with the Supreme Court a
    plea of nullity and an appeal against this decision of the Regional
    Court.

    Subsequently, further applications for release from detention were
    lodged by the applicant on 21st, 27th and 30th January, 1967. The
    Regional Court of Linz refused these applications on 15th February,
    1967. The applicant appealed against this decision to the Linz Court
    of Appeal which decided on 15th March, 1967, that the appeal should be
    allowed. The Court ordered that the applicant should be released on a
    solemn undertaking in accordance with Article 191 of the Code of
    Criminal Procedure on the ground that, having been kept in detention
    on remand for two-and-a-half years, it could no longer be assumed that
    he would abscond in order to avoid prosecution. The applicant was
    released accordingly on 20th March, 1967.

    It appears that, on 15th February, 1968, the Supreme Court heard the
    applicant's plea of nullity and appeal. It dismissed the plea of
    nullity, but reduced the sentence to two years' and nine months' severe
    imprisonment.

    2. Proceedings for fraudulent bankruptcy (19 Vr 1566/64)

    In 1964, while the charges under the proceedings set out above were
    still being investigated, the applicant was suspected of having
    committed further offenses with regard to his obligations towards his
    creditors.

    It appears that the purchasers of plots had instituted civil
    proceedings against the applicant to recover their purchase monies
    after it had been clear that he was not able to transfer to them the
    titles of various plots. By the end of April 1964 a large number of
    them were in possession of final judgments on the basis of which they
    were entitled to execution against the applicant. The applicant was
    accused of having prevented some of these creditors from obtaining
    satisfaction of the sums owing to them.

    On the application of the Public Prosecutor's Office at Linz the
    investigating judge decided on 31st August, 1964, that preliminary
    investigations (Voruntersuchung) should be instituted against him. The
    judge further decided that these charges should be dealt with
    separately from the charges of fraud referred to above.[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  4. #4

    افتراضي

    [align=left]
    During the period from September 1964 to March 1965 these charges were
    investigated by the police. As more and more creditors laid charges
    against the applicant the preliminary investigations were extended to
    these new facts.

    On 15th March, 1965, the Office of the Public Prosecutor at Linz made
    a request to the investigating judge that a warrant for the applicant's
    arrest should be issued and his detention on remand be ordered in
    accordance with the provisions of Article 175, paragraph (1),
    sub-paragraphs 3 and 4, and 180, paragraph (1) of the Code of Criminal
    Procedure. The investigating judge found that there existed the danger
    of the applicant's committing further offenses and on the same day made
    the order requested. Consequently, the applicant was arrested on 15th
    March, 1965.

    On 16th March, 1965, he submitted an application by which he complained
    of the unlawfulness of his detention on remand and also challenged the
    entire circuit of the Court of Appeal of Linz
    (Oberlandesgerichtsprengel), the courts in that circuit, as well as the
    Judge of the Court of Appeal, Dr. Y. The challenges were rejected by
    the Supreme Court on 1st August, 1965, by the Linz Court of Appeal on
    21st April, 1965, and by the President of the Linz Regional Court on
    4th May, 1965, and 20th May, 1965.

    On 10th and 17th May, 1965, the applicant had also repeated his
    complaints that his detention on remand was unlawful. On 16th May,
    1965, the Judges' Chamber of the Linz Regional Court rejected these
    complaints. The applicant lodged with the Linz Court of Appeal an
    appeal against this decision which was rejected on 16th June, 1965, for
    the reasons stated in the Regional Court's decision of 26th May, 1965.

    As was stated above under A II 1, a statement was taken from the
    applicant on 6th September, 1965, in order to clarify certain
    application made by him. This required further decisions to be taken
    by the Linz Regional Court and the Supreme Court (see above).

    On 10th November, 1965, the Judges' Chamber of the Linz Regional Court
    rejected the applicant's application for release pending trial and for
    joinder of the two criminal proceedings against him. On appeal to the
    Linz Court of Appeal this decision was confirmed on 9th December, 1965.

    A further petition for release pending trial lodged by the applicant
    on 14th December, 1965, with the investigating judge was refused on
    20th December, 1965, on the ground that the danger of the applicant's
    committing further offenses persisted. An appeal and further appeal to
    the Regional Court's Judges' Chamber and the Court of Appeal at Linz
    were rejected on 29th December, 1965, and 9th February, 1966,
    respectively.

    On 18th February, 1966, the applicant made a new application for
    release pending trial; he also requested that his case should be
    transferred to the jurisdiction of another court.

    By indictment of 14th March, 1966, the applicant was charged with
    having committed fraudulent bankruptcy under Article 205 a of the
    Criminal Code. He made an appeal (Einspruch) against the indictment and
    requested that the Supreme Court or the Vienna Court of Appeal should
    give a decision on his appeal.

    On 27th June, 1966, the Supreme Court rejected this request on the
    ground that it had no competence to take such decision. As to his
    application for a change of venue the Supreme Court decided that it
    should be rejected as being ill-founded.

    On 6th July, 1966, the Linz Court of Appeal confirmed the indictment.
    The Court further decided that his detention on remand should continue
    on the ground that the danger of his committing further offenses
    persisted.

    On 27th July, 1966, the Linz Regional Court and on 24th August, 1966,
    the Judges' Chamber of the Regional Court rejected the applicant's
    renewed applications for release pending trial.

    On 15th September, 1966, the applicant again applied for his release
    from detention on remand, but his application was rejected by the
    investigating judge on 27th September, 1966. His appeal and further
    appeal to the Regional Court and the Court of Appeal at Linz were
    rejected on 27th October, 1966, and 30th November, 1966, respectively.

    On 27th January, 1967, the applicant made new applications for release
    pending trial and change of venue which were rejected by the Linz
    Regional Court on 8th February, 1967, and by the Supreme Court on 24th
    February, 1967.

    As was stated above, on 20th March, 1967, the applicant was released
    on a solemn undertaking.

    B. Whereas in his application form, in his written submission and at
    the oral hearing on 17th July, 1968, the applicant alleges violations
    of:

    1. Article 5, paragraph (3), in that the length of his detention on
    remand was unreasonable;

    2. Article 6, paragraph (1), in that he was not brought to trial within
    a reasonable time;

    3. Article 6, paragraph (1), in that he did not have a fair hearing
    before the Constitutional Court on the question whether or not certain
    members of the Regional Real Property Sales Commission at Linz had been
    biased;

    4. Article 5, paragraph (4), in that, by reason of the fact that the
    decisions relating to detention pending trial had been taken by the
    courts after hearing the prosecuting authority but in the absence of
    the applicant or his lawyer, there has been no "proceedings" by which
    the lawfulness of his detention was decided by a court.

    Whereas the respondent Government has replied to these allegations in
    its written observations of 23rd August, 1967, and at the oral hearing
    on 17th July, 1968;

    Whereas the arguments of the parties may be summarised as follows:

    I. As regards the general objections by the respondent Government under
    Article 26 of the Convention (exhaustion of domestic remedies and
    observance of six months' rule), as regards B 1 and 3 above.

    1. The respondent Government submitted that the applicant failed to
    exhaust the remedies which are available to him under Austrian law with
    regard to his complaints under Article 5, paragraph (3), of the
    Convention and his complaints under Article 6, paragraph (1),
    concerning the proceedings before the Constitutional Court.

    (a) Insofar as the allegations under Article 5, paragraph (3), are
    concerned, the respondent Government first dealt with the period from
    5th August to 23rd December, 1963. It contended that the applicant was
    successful in invoking domestic remedies as he was released from
    detention in accordance with the decision of the Linz Court of Appeal,
    dated 19th December, 1963. Hence, there was no reason for his complaint
    in regard to that detention.

    Furthermore, this detention was terminated on 23rd December, 1963, and
    the application was not lodged until 3rd July, 1965. Consequently, this
    part of the application was outside the six months' period as provided
    for in Article 26 of the Convention.

    With regard to the subsequent period of the applicant's detention on
    remand the respondent Government contended that the Commission had no
    competence to examine the period after 3rd July, 1965, the date on
    which the application had been lodged with the Commission. It resulted
    from Articles 24 and 25 of the Convention that the Commission had
    competence only to consider the period which the applicant spent in
    detention on remand before he lodged his application with the
    Commission.

    The respondent Government then dealt specifically with the complaint
    in relation to the period from 15th March, 1965 to 20th March, 1967,
    which the applicant spent in detention on remand during the proceedings
    for fraudulent bankruptcy. It submitted that the applicant had failed
    to exhaust the domestic remedies before 3rd July, 1965, the date on
    which he lodged the present application with the Commission. In this
    respect, the respondent Government contended that the applicant had
    failed to make an appeal against the decision of the Judges' Chamber
    of the Linz Regional Court, dated 26th May, 1965.

    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  5. #5

    افتراضي

    [align=left]Finally, the respondent Government dealt with the applicant's complaint
    to the period from 12th May, 1965, to 20th March, 1967, which he spent
    in detention on remand during the proceedings for fraud. In this
    respect, it submitted that the applicant failed to avail himself of any
    remedy before lodging his application on 3rd July, 1965, that is again
    after the application had been lodged with the Commission. It submitted
    that, in accordance with the French text of Article 26 of the
    Convention "la Commission ne peut être saisie qu'après l'épuisement des
    voies de recours internes". Hence, this part of the application was
    inadmissible under this provision for failure to exhaust the domestic
    remedies.

    It finally pointed out that, under Austrian law the rights and freedoms
    set forth in the Convention had the rank of being constitutional
    rights, the violation of which may be invoked before the Constitutional
    Court. This the applicant had failed to do. Furthermore, the Commission
    had already decided on previous occasions that the proceedings before
    the Constitutional Court constituted a remedy within the meaning of
    Article 26 of the Convention.

    2. The applicant first submitted that the period of detention from 5th
    August to 23rd December, 1963, should be taken into consideration in
    spite of the fact that it was more than six months before the
    application was lodged with the Commission, as in Austria the entire
    period of detention was deducted from the sentence. Furthermore, this
    period should also be considered when deciding the question whether or
    not there existed a danger of the applicant's absconding.

    The applicant further submitted that he repeatedly appealed to the
    Court of Appeal against decisions refusing his release from detention
    pending trial. Furthermore, the Commission should consider the facts
    of a case as they present themselves at the time when its decision was
    being taken, as it would be unrealistic to require a person to make a
    new application with the Commission after each final decision rejecting
    a request for release.

    Finally, as regards the proceedings before the Constitutional Court,
    the applicant submitted that it was questionable whether the
    Constitutional Court could be considered as being a remedy within the
    meaning of Article 26 of the Convention, as it constituted an
    extraordinary remedy under Austrian law.

    II. As regards the other allegations

    1. As to Article 5, paragraph (3), of the Convention (right of a
    detained person to trial within a reasonable time)

    (a) The respondent Government further submitted that, even assuming
    the applicant had complied with the provisions of Article 26 of the
    Convention, his complaints regarding the length of his detention on
    remand during both criminal proceedings against him were manifestly
    ill-founded. Reference was made to the arguments presented by the
    Austria Government to the European Court of Human Rights in the
    Neumeister Case. In particular, with regard to the present case, the
    respondent Government pointed out that it was largely the fault of the
    applicant himself that he had been kept in detention on remand as he
    had filed numerous applications and petitions to the courts. Especially
    his applications for a change of venue caused considerable delays as
    on each occasion the files had to be transmitted to the Supreme Court
    in Vienna for the decision by that Court. Similar delays were caused
    by his challenges of judges and by more than fifty written submissions
    to the President of the Linz Court of Appeal which had to be dealt with
    in one way or another.

    (b) The applicant first pointed out that he had no previous
    convictions. He then gave certain details of the facts which led up to
    his conviction and sentence for fraud, concluding in particular that
    political reasons had prompted the Real Property Sales Commissions to
    refuse approval of his contract for the purchase of the property
    concerned.

    The applicant submitted that the actual period of his detention on
    remand constituted two-and-a-half years and was, consequently,
    excessive within the meaning of Article 5, paragraph (3), of the
    Convention. In this connection he argued that the period after 14th
    January, 1966, the date of his conviction and sentence by the Linz
    Regional Court should be taken in consideration when calculating the
    actual length of his detention on remand. This resulted from the
    principle of presumption of innocence contained in Article 6, paragraph
    (2), of the Convention read in conjunction with the requirement of
    exhausting domestic remedies under Article 26. For, it followed that,
    if the aforesaid presumption obtained until all domestic remedies had
    been exhausted, a period up to the date of the final judgment must be
    considered in order to determine whether or not the detention was
    reasonable. Furthermore, when the actual length of a person's detention
    on remand exceeded a certain period, this gave rise to a rebuttable
    presumption that the detention was unreasonable. He submitted, that,
    where an offence is punishable with imprisonment up to ten years the
    detention may be considered reasonable if it lasted for six months to
    a year. In the present case, where the applicant was finally sentenced
    to two years and nine months' imprisonment, his detention on remand for
    a period of two-and-a-half years was clearly too long. It was true
    that, under the applicable provisions of the Austrian Criminal Code,
    it is possible to impose sentences from five to ten years for the
    offenses of which the applicant was accused. However, the Criminal Code
    dates back to 1803 when it was considered that severe sentences had a
    preventive effect on prospective criminals. Modern criminology had
    established that this is not true. Consequently, the Austrian
    Government recently had published the draft of a new Criminal Code in
    which it was expressly stated that the sentences provided in the
    existing law were too severe. According to this draft law the
    provisions relating to mitigation of sentence should be applied as a
    general rule and, as regards cases of fraud involving sums of more than
    100,000 Schillings, a sentence of one year's imprisonment constitutes
    the lowest punishment.

    The applicant further stated that it was not his own behaviour that
    caused the delays. He considered that he was innocent and that it could
    not be held against him that he tried to defend himself against the
    accusations made. Besides, as he was detained during two proceedings
    against him, he was obliged to make applications for his release in
    regard to both proceedings.

    The applicant further submitted that the reasons for his arrests and
    detention on remand did not exist. In particular, there was no danger
    of his committing further offenses as, by the time he was arrested for
    the second time in March 1965, bankruptcy proceedings had already been
    opened against him. It should not be necessary that the danger of his
    committing further offenses existed with regard to any offence but
    simply with regard to that offence which gave rise to his arrest and
    remand in custody. It followed that in view of the bankruptcy
    proceedings he had no possibility to commit any further offenses of
    fraud or fraudulent bankruptcy.

    2. As to Article 6, paragraph (1), of the Convention with regard to the
    criminal proceedings against the applicant (right to have his case
    heard within a reasonable time)[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  6. #6

    افتراضي

    [align=left](a) The respondent Government first referred again to its legal
    arguments on the interpretation of Article 6, paragraph (1), of the
    Convention which it submitted in the Neumeister Case. It stressed, in
    particular, that the time to be considered in connection with this
    provision began when the indictment was preferred.

    The respondent Government further submitted that separate handling of
    the two proceedings against the applicant served to accelerate the
    proceedings for fraud (19 Vr 394/63) which it considered to be the main
    proceedings. In these proceedings the indictment was preferred on 15th
    April, 1965, the preliminary investigation having been instituted on
    16th July, 1963. Consequently, the investigations lasted for about a
    year and a half only, while the proceedings themselves after the
    indictment had been preferred took over two years and a half. This
    delay was caused by the applicant himself who made numerous and
    generally hopeless applications. In particular, the applicant himself
    repeatedly requested that the trial should be cancelled or adjourned.

    The respondent Government further stated that the new trial had been
    immediately fixed by the Linz Regional Court after the files had been
    returned to the Supreme Court following its decision of 27th July,
    1966, by which certain parts of the Regional Court's judgment of 14th
    January, 1966, had been set aside. Subsequently, the Public
    Prosecutor's Office had requested that proceedings on certain charges
    should be discontinued and this measure also served only to accelerate
    the proceedings.

    The respondent Government further submitted that the criminal
    proceedings for fraudulent bankruptcy (19 Vr 1566/64) were dependent
    on the outcome of the proceedings for fraud.

    (b) The applicant submitted that the time to be considered in
    connection with Article 6, paragraph (1), of the Convention began when
    the preliminary investigation was instituted against him. This
    represented an important step in the proceedings by which a person was
    being put on trial for having committed criminal offenses and
    corresponded to the "criminal charge" in the Anglo-American law. After
    preliminary investigations have been instituted it is not possible for
    the prosecution simply to discontinue the proceedings, but a judicial
    decision is necessary.

    The applicant stated that the proceedings for fraud were unduly
    prolonged in that, in one period from 13th to 16th December, 1965, all
    witnesses has been heard and all applications had been dealt with. None
    of the witnesses were resident outside Linz and no witness had held up
    the proceedings. Furthermore, the applications made by the applicant
    himself had not caused any delay. The files had always remained in Linz
    and the Court of Appeal was only ten minutes' walk away from the
    Regional Court.

    The applicant further submitted that, as regards the proceedings for
    fraudulent bankruptcy, no action had been taken so far and it was not
    likely that any action would be taken.

    3. As to Article 6, paragraph (1), of the Convention with regard to the
    proceedings before the Constitutional Court (right to a fair hearing
    before an independent and impartial tribunal)

    (a) The respondent Government submitted that Article 6, paragraph (1),
    of the Convention did not guarantee a right to proceedings before a
    court of law but simply laid down basic rules of procedure where
    national legislation makes provisions for judicial proceedings.
    Furthermore, the term "civil rights" within the meaning of the
    aforesaid provision should be interpreted as simply referring to the
    national legal system.

    The respondent Government further submitted that the Regional Real
    Property Sales Commission was organised in accordance with the
    principle of collective responsibility as provided in Article 133,
    paragraph (4), of the Federal Constitutional Act
    (Bundesverfassungsgesetz) and was clearly an independent and impartial
    authority.

    However, Article 6, paragraph (1), of the Convention was not applicable
    to proceedings before the Real Property Sales Commission. When
    considering the question what is meant by the provision in Article 6,
    paragraph (1), relating to "the determination of civil rights and
    obligations" reference must be made to the French text which reads as
    follows: "contestations sur des droits et obligations de caractère
    civil." In this context "contestations" could only relate to disputes
    (Streitigkeiten) as regards matters concerning the relations between
    parties who are on an equal footing but not such concerning the
    subordination of persons to the state. In this connection, the
    respondent Government referred to the Commission's decisions on the
    admissibility of Applications Nos. 423/58 (Collection of Decisions,
    Vol. 1), 1329/62 Yearbook V. p. 208), and 1931/63 (Collection of
    Decisions, Vol. 15, p. 8).

    The respondent Government submitted that the proceedings instituted by
    the applicant before the Real Property Sales Commission were not aimed
    at clarifying matters between himself and the sellers of the land in
    question. Instead, the object of these proceedings was to obtain a
    decision from a public authority on the question as to whether or not
    the transfer of title to the property concerned was compatible with
    certain public interests. The respondent Government concluded that such
    proceedings do not involve the "determination of civil rights" within
    the meaning of Article 6, paragraph (1), of the Convention. This
    question resulted from the fact that the appeal to he Constitutional
    Court constituted an extraordinary remedy under Austrian law. The
    decisions of the Regional Real Property Sales Commission were final
    decisions on the merits leaving only the possibility of a
    constitutional appeal to the Constitutional Court by alleging the
    violation of constitutional rights.

    The applicant further submitted that the decisions of the Regional Real
    Property Sales Commission violated Article 6, paragraph (1), of the
    Convention, since it was not taken by impartial judges. Furthermore,
    the decision of the Constitutional Court also violated the aforesaid
    provision since this Court failed to deal with the question of bias on
    the part of certain members of the Real Property Sales Commission.

    The applicant finally submitted that the proceedings concerned involved
    the determination of his civil rights within the meaning of Article 6,
    paragraph (1), of the Convention. These proceedings dealt with the
    question whether or not a legal condition which was stipulated in a
    contract was fulfilled. The contract had been made between the parties
    and simply required the approval of the authority concerned to the
    effect that agricultural concerns would not be interfered with.

    4. As to Article 5, paragraph (4), of the Convention in regard to the
    proceedings concerning application for release pending trial (right of
    a detained person to take proceedings for a decision by a court on the
    lawfulness of his detention)

    (a) During the oral hearing before the Commission the applicant also
    made complaints in regard to the procedure followed in deciding on
    application for release pending trial. He alleged that Article 5,
    paragraph (4), of the Convention was violated by the fact that the
    prosecuting authority was heard by the courts but neither he nor his
    lawyer were allowed to be present when the court took a decision on the
    lawfulness of his detention on remand. Consequently there were no
    "proceedings" within the meaning of the said provision and the
    principle of "equality of arms" was violated, in particular, where the
    order for the applicant's release was set aside on appeal by the Public
    Prosecutor's Office.[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  7. #7

    افتراضي

    [align=left](b) The respondent Government first referred to the judgment of the
    European Court of Human Rights in the Neumeister Case. It also
    submitted that, insofar as the applicant had not previously included
    his point in his application, it should not now be dealt with by the
    Commission.

    THE LAW

    A. As regards the general objections made by the respondent Government
    under Article 26 (Art. 26) of the Convention in relation to the
    applicant's complaints concerning the length of his detention on remand
    (Article 5, paragraph (3) (Art. 5-3), of the Convention) and the
    proceedings before the Constitutional Court (Article 6, paragraph (1)
    (Art. 6-1), of the Convention);

    Whereas Article 26 (Art. 26) of the Convention 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, and within a period of six months from the date on
    which the final decision was taken".

    Whereas the respondent Government has submitted that, with regard to
    the applicant's complaints concerning the length of his detention on
    remand both during the proceedings against him for fraud and for
    fraudulent bankruptcy, the Commission had no competence under Articles
    24 and 25 (Art. 24, 25) of the Convention to examine the period of his
    detention on remand after 3rd July, 1965, the date on which he lodged
    his application with the Commission; whereas the respondent Government
    has also contended that the applicant has failed to exhaust, prior to
    lodging his application with the Commission, the remedies available to
    him under Austrian law;

    Whereas, in regard to the period from 5th August to 23rd December,
    1963, the respondent Government further submitted that the applicant
    had, in fact, been released on giving a solemn undertaking and had,
    therefore, obtained his rights by invoking national remedies; whereas,
    furthermore, he had only lodged his application with the Commission on
    3rd July, 1965, that is more than six months after 19th December, 1963,
    the date on which the final decision in this respect was given by the
    Linz Court of Appeal; whereas consequently, this part of the
    application should be declared inadmissible under Article 26 (Art. 26)
    of the Convention;

    Whereas in respect of the above submissions, the Commission first had
    regard to the judgment given by the European Court of Human Rights in
    the "Neumeister" case on 27th June, 1968; whereas the Court stated
    that, where an applicant was detained during two separate periods, one
    of which was outside the six months time-limit laid down in Article 26
    (Art. 26) of the Convention, such earlier period of detention should
    nevertheless be taken into consideration in assessing the
    reasonableness of his later detention; whereas the Court has further
    stated that, insofar as the applicant complained of his detention on
    remand, he complained of a continuing situation, and that it would be
    "excessively formalistic", and also conducive to paralysing the
    Commission's and the Court's work, to demand that an applicant
    denouncing such a situation should file a new application with the
    Commission after each final decision rejecting a request for release.

    Whereas the Commission accordingly finds that, while it would be barred
    by the six months' rule laid down in Article 26 (Art. 26) of the
    Convention from considering as a separate complaint the first period
    of detention on remand (5th August to 23rd December, 1963), it may
    consider the periods subsequent to the date of the application's
    introduction and may also take the first period into account in forming
    an opinion on the reasonableness of the applicant's later detention;

    Whereas, as regards the question of exhaustion of domestic remedies,
    the Commission had regard to the text of Article 26 (Art. 26) of the
    Convention as set out above; whereas it observes that there exists a
    divergence in the English and French text; whereas, according not the
    English text, the Commission "may only deal with a matter after all
    domestic remedies have been exhausted ..."; whereas the French text
    states that the Commission "ne peut être saisie qu'après l'épuisement
    des voies de recours internes ..."; whereas the argument of the
    respondent Government that the applicant had failed to exhaust the
    domestic remedies before lodging his application with the Commission,
    is obviously based on the French text;

    Whereas the rule requiring the exhaustion of domestic remedies before
    making an international application is based on the principle that the
    respondent State should first have had an opportunity to redress the
    alleged grievance by its own means within the framework of its own
    domestic legal system (cf. I.C.J., Interhandel Case, Reports 1959, p.
    27); whereas the purpose of the aforesaid rule is clearly accomplished
    where the international tribunal is seized of a complaint by an
    paragraph whose proceedings before the domestic courts terminate in a
    reasonable time thereafter with a final decision by the competent
    court;

    Whereas, further, it is clear that such final decision must have been
    given at the latest when the international authority comes to deal
    with, namely to decide upon, the application; whereas, consequently,
    the Commission finds that the English text of Article 26 (Art. 26)
    expresses more accurately the principle envisaged by the rule requiring
    exhaustion of domestic remedies;

    Whereas, when examining the application's detention on remand from 12th
    May, 1965, to 20th March, 1967, during the proceedings against him for
    fraud (19 Vr 394/63) in the light of the above finding, the Commission
    observes that, on 19th May, 1965, the Linz Court of Appeal decided,
    inter alia, that the detention on remand should continue;

    Whereas similar decisions were given by the Court of Appeal at Linz on
    2nd March, 1966, and 28th September, 1966;

    Whereas, similarly, with regard to his detention on remand from 15th
    March, 1965, to 20th March, 1967, during the proceedings against him
    for fraudulent bankruptcy (19 Vr 1566/64), the Commission observes that
    the applicant made an appeal to the Linz Court of Appeal against the
    decision of the Judges' Chamber of the Regional Court at Linz, dated
    26th May, 1965; whereas on 16th June, 1965, the Court of Appeal at Linz
    rejected the appeal; whereas corresponding decisions were given by the
    said Court of Appeal on 9th December, 1965, 9th February, 1966, 6th
    July, 1966, and 30th November, 1966;

    Whereas, consequently, both before and after the applicant had lodged
    the present application with the Commission, the Court of Appeal, which
    is the highest judicial authority a regards applications for release
    pending trial, had taken decisions to the effect that the applicant's
    detention on remand should continue;

    Whereas, therefore, the Commission finds that, as regards his
    complaints under Article 5, paragraph (3) (Art. 5-3), of the Convention
    relating to the continuing situation of his detention on remand, the
    applicant has exhausted the domestic remedies within the meaning of
    Article 26 (Art. 26) of the Convention;

    Whereas the general objections of the respondent Government have also
    been made as to the effect of Article 26 (Art. 26) of the Convention
    on the applicant's complaints under Article 6, paragraph (1)
    (Art. 6-1), concerning the proceedings before the Constitutional Court;

    Whereas, in this respect, the respondent Government submitted that the
    applicant failed to allege before the Constitutional Court a violation
    of the right guaranteed in Article 6, paragraph (1) (Art. 6-1), of the
    Convention, which, under Austrian law, are of the same authority as the
    provisions of the Constitution; whereas the applicant alleged that, in
    view of the fact that a constitutional appeal to the Constitutional
    Court constituted an extraordinary remedy, he was denied access to a
    tribunal as guaranteed by the aforesaid provision;

    Whereas the question whether or not a domestic remedies must be
    exhausted before the Commission may deal with a case is to be
    determined according to the generally recognised principles of
    international law; whereas this means that, if remedies which seem
    effective and sufficient are open to an individual within the legal
    system of the responsible state, he must use and exhaust such remedies
    in the normal way;

    Whereas, indeed, the Commission has consistently held that the mere
    fact that the applicant has, in pursuance of Article 26 (Art. 26),
    submitted his case to the various competent courts does not constitute
    compliance with this rule, but that it is also required that any
    complaint made before the Commission and relating to lower courts or
    authorities should have been substantially raised before the competent
    higher court or authority (see decisions No. 263/57 - Yearbook I, p.
    147, 788/60 - ibid. IV, p. 116 and 1103/61 - ibid. V, p. 168);

    Whereas, furthermore, the Commission has also held on previous occasion
    that, under Article 26 (Art. 26) of the Convention, the applicant might
    be required to pursue the remedies available for an alleged breach of
    his human and constitutional rights by means of a direct appeal to the
    Constitutional Court (see final decision No. 2854/66, dated 18th
    December, 1967);

    Whereas, however, in its decision on the admissibility of Application
    No. 712/50 (Yearbook IV, pages 384, 400), the Commission referred to
    the jurisprudence of various international judicial organs, including
    the Permanent Court of International Justice; whereas the Commission
    has stated that remedies which do not offer a possibility of redressing
    the alleged damage cannot be regarded as effective or sufficient and
    there is, therefore, no need for them to be exhausted according to the
    generally recognised principles of international law;

    Whereas the Commission had regard to the recent jurisprudence of the
    Austrian Constitutional Court with regard to that Court's
    interpretation of Article 6, paragraph (1) (Art. 6-1), of the
    Convention (see Application No. 2076/63 - Collection of Decisions, Vol.
    23, p. 74); whereas in its decision of 14th October, 1965, the
    Constitutional Court held that:[/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  8. #8

    افتراضي

    [align=left]

    - Article 6, paragraph (1) (Art. 6-1), did not require that the
    decision of first instance was given by a court; it was sufficient
    that this decision, where taken by an administrative authority, was
    subject to review by a court;

    - It was not contrary to Article 6, paragraph (1) (Art. 6-1), that the
    Constitutional Court was competent only to confirm or to quash (nur
    kassatorisch entscheiden) the administrative decision under review;
    for, where the decision was quashed, the administrative authorities
    were obliged to follow the Court's interpretation of the law;

    - the Constitutional Court was not bound by the findings of the
    administrative authorities as to the facts.

    Whereas it emerges from that decision that the Constitutional Court
    considered itself as being the proper tribunal having competence to
    review decisions taken by administrative authorities; whereas, under
    Austrian law, there is no possibility of appeal against decisions in
    the present case, even if the applicant had invoked Article 6,
    paragraph (1) (Art. 6-1), by alleging that he had been denied access
    to a tribunal, he would not have been heard on this submission;
    whereas, therefore, he did not have an effective remedy with regard to
    his aforesaid complaint;

    Whereas the applicant further complained in this connection that the
    Constitutional Court had failed to deal with his allegations of bias
    of certain members of the Regional Real Property Sales Commission;

    Whereas, here again, the respondent Government apparently contends that
    the applicant should have invoked before the Constitutional Court
    Article 6, paragraph (1) (Art. 6-1), of the Convention;

    Whereas, in this respect, the Commission observes that the applicant
    has, in fact, invoked before the Constitutional Court Article 83,
    paragraph (2), of the Federal Constitutional Act which provides that
    nobody shall be deprived of a hearing by the judge established by law
    ("Niemand darf seinem gesetzlichen Richter entzogen werden");

    Whereas, therefore, the applicant had in substance brought before the
    Constitutional Court the issues under Article 6, paragraph (1), of the
    Convention relating to the composition of the Regional Real Property
    Sales Commission; whereas the Constitutional Court has refused, on
    formal legal grounds, to deal with this question; whereas,
    consequently, the applicant has exhausted all remedies available to him
    under Austrian law according to the generally recognised principles of
    international law;

    Whereas the respondent Government further maintained that the applicant
    failed to comply with the provisions of Article 26 (Art. 26) of the
    Convention in that the remedies in regard to his complaints under
    Article 6, paragraph (1) (Art. 6-1), of the Convention to the
    composition of the Regional Real Property Sales Commission had not yet
    been exhausted at the time when he lodged his application with the
    Commission; whereas the respondent Government pointed out that the
    decision of the Constitutional Court was not given until 27th
    September, 1965, while the present application was introduced on 3rd
    July, 1965;

    Whereas the Commission has already stated that it is sufficient for the
    purposes of the rule requiring the exhaustion of domestic remedies
    under Article 26 (Art. 26) of the Convention that the Commission should
    have been seized of the applicant's complaint within a reasonable time
    after the proceedings before the domestic courts have been terminated
    with a final decision by the competent court, but before the
    Commission, in fact, deals with, that is to say decides upon, the
    application;

    Whereas the same reasoning applies both to complaints relating to a
    continuing situation and those concerning single isolated events;

    Whereas the Commission finds that a question under Article 26 (Art. 26)
    of the Convention might arise where the period between the date on
    which the application was lodged with the Commission, and the date on
    which the final decision was taken by the domestic judicial or other
    authorities was extremely long; whereas, however, in the present case,
    less than three months have elapsed between the introduction of the
    application and the decision of the Constitutional Court; whereas,
    consequently, the Commission finds that the applicant has exhausted the
    domestic remedies in accordance with Article 26 (Art. 26) of the
    Convention;

    Whereas, therefore, the Commission rejects the general objections to
    the admissibility of the application made by the respondent Government
    on the basis of Article 26 (Art. 26) of the Convention;

    B. As regards the alleged violations of Article 5, paragraph (3) and
    Article 6, paragraph (1) (Art. 5-3, 6-1), of the Convention relating
    to the length of the applicant's detention on remand and the length of
    the criminal proceedings against him;

    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 conditioned by guarantees to appear for trial";
    and whereas Article 6, paragraph (1) (Art. 6-1), of the Convention
    provides: "In the determination of .... any criminal charge against
    him, everyone is entitled to a ..... hearing within a reasonable time
    by (a) .... tribunal ...;"

    Whereas, first, the applicant alleged that his detention pending trial
    for a period of over two years violated Article 5, paragraph (3)
    (Art. 5-3), of the Convention; whereas the respondent Government has
    submitted in particular that, by reason of his numerous and to some
    extent hopeless applications and petitions the applicant himself had
    caused the delays concerned, and that therefore the application was in
    this respect manifestly ill-founded within the meaning of Article 27,
    paragraph 2 (Art. 27-2), of the Convention;

    Whereas, secondly, the applicant alleged that the failure to bring him
    to trial on the charge of fraudulent bankruptcy and the length of the
    proceedings against him for fraud deprived him of a hearing in these
    cases within a reasonable time in accordance with Article 6, paragraph
    (1) (Art. 6-1), of the Convention; whereas the respondent Government
    has submitted that in view of the complexity of the cases concerned,
    of the dependence of the proceedings for fraud on the outcome of the
    proceedings for fraudulent bankruptcy, and of the fact that the
    applicant's case was carried out with the greatest possible expedition,
    the periods concerned were not excessive and unreasonable and that this
    part of the application was also manifestly ill-founded within the
    meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;

    Whereas, when deciding upon the admissibility of the present
    application, the Commission had regard in particular to the judgments
    of 27th June, 1967, of the European Court of Human Rights in the
    "Neumeister" and "Wemhoff" cases; whereas, in regard to the allegations
    under Article 5, paragraph (3) (Art. 5-3), the Court pointed out that
    it was essential on the basis of the reasons given by the national
    authorities in the decisions on the applications for release pending
    trial, and of the true facts mentioned by the applicant in his appeals,
    that the Court should decide whether or not there had been a violation
    of the provisions concerned;

    Whereas, in relation to the allegations under Article 6, paragraph (1)
    (Art. 6-1), of the Convention, the Court had regard to the exceptional
    circumstances of the particular case concerned in determining the
    question of a violation of this provision;

    Whereas, similarly, in a series of previous decisions concerning the
    question of the length of detention on remand and of the proceedings
    themselves, the Commission has held that the reasonableness of the
    periods involved must be assessed not in abstracto but in the light of
    the particular circumstances of the case concerned (see, for example,
    the decisions on the application of the cases of Matznetter,
    Stögmüller, Neumeister, Wemhoff and Gericke);

    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, at the stage of considering the
    admissibility, to reject a complaint whose lack of foundation cannot
    be so described (see, for example, Applications Nos. 1474/62 and
    1769/63, Collection of Decisions, Vol. 11, pages 50 and 59);

    Whereas, in the present case, the Commission has carried out a
    preliminary examination of the information and arguments submitted by
    the parties with regard to the applicant's complaints under Article 5,
    paragraph (3) and Article 6, paragraph (1) (Art. 5-3, 6-1), of the
    Convention concerning the length of his detention on remand and of the
    proceedings on the charges preferred against him; whereas the
    Commission finds that these complaints are of such complexity that
    their determination should depend upon an examination of their merits;
    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;

    C. As regards the alleged violation of Article 6, paragraph (1)
    (Art. 6-1), of the Convention in relation to the proceedings before the
    Constitutional Court

    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  9. #9

    افتراضي

    [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]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

المواضيع المتشابهه

  1. WEMHOFF v. GERMANY - 2122/64 [1968] ECHR 2 (27 June 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 13
    آخر مشاركة: 07-19-2009, 01:08 AM
  2. NEUMEISTER v. AUSTRIA - 1936/63 [1968] ECHR 1 (27 June 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 18
    آخر مشاركة: 07-19-2009, 12:51 AM
  3. X. v. AUSTRIA - 3001/66 [1968] ECHR 10 (30 May 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 1
    آخر مشاركة: 07-19-2009, 12:39 AM
  4. X. v. THE FEDERAL REPUBLIC OF GERMANY - 2699/65 [1968] ECHR 9 (01 April 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 2
    آخر مشاركة: 07-19-2009, 12:37 AM
  5. TWENTY-ONE DETAINED PERSONS v. GERMANY - 3139/67 [1968] ECHR 15 (06 April 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:35 AM

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