[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]