[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]