AS TO THE ADMISSIBILITY OF

Application No. 11968/86
by Helmut BÖHLER
against Austria

        The European Commission of Human Rights sitting in private on
7 May 1987, the following members being present:

                    MM. G. SPERDUTI, Acting President
                        J.A. FROWEIN
                        F. ERMACORA
                        G. JÖRUNDSSON
                        G. TENEKIDES
                        B. KIERNAN
                        A.S. GÖZÜBÜYÜK
                        A. WEITZEL
                        H.G. SCHERMERS
                        G. BATLINER
                        H. VANDENBERGHE
                   Mrs  G.H. THUNE
                   Sir  Basil HALL
                   Mr.  F. MARTINEZ

                   Mr.  K. ROGGE, Head of Division acting as Secretary
                   to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 10 January 1986
by Helmut BÖHLER against Austria and registered on 29 January 1986
under file No. 11968/86;

        Having regard to:

-       the first report of May 1986 provided for in Rule 40 of the
        Rules of Procedure of the Commission;

-       the Commission's decision of 8 July 1986 to bring the
        application to the notice of the respondent Government and
        invite them to submit written observations on the admissibility
        and merits of the application;

-       the observations submitted by the respondent Government on
        13 October 1986 and the reply submitted thereto by the the
        applicant on 8 December 1986;

-       the second report of March 1987 provided for in Rule 40 of the
        Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:


THE FACTS

        The facts of the case, as submitted by the parties, may be
summarised as follows:

        The applicant, an Austrian citizen born in 1940, is an
insurance employee currently detained in Salzburg prison.  Before the
Commission he is represented by Mr.  G. Stanonik, a lawyer practising
in Salzburg.

        On 1 July 1980 the applicant was arrested on suspicion of
fraud and remanded in custody.  Criminal proceedings were instituted
against the applicant whereupon he was tried before the Salzburg
Regional Court (Landesgericht).  The criminal file consisted of 13
volumes with more than 100 pages of expert opinions.  In addition,
there were 30 volumes consisting of documentary evidence.  The trial
(Hauptverhandlung) lasted five days, during which 30 witnesses were
heard.  The minutes of the trial consisted of 357 pages.

        On 16 November 1982, after a hearing at which the applicant
was present, the court orally pronounced its judgment and mentioned
the relevant reasons therefor.  In the judgment it convicted the
applicant of 24 instances of fraud in amounts varying between 10,000
and 1,000,000 AS.  The applicant was also convicted of seven
violations of the foreign exchange laws.  The Court sentenced the
applicant to eight years' imprisonment, making allowance for the
period of detention on remand.

        In particular, according to the judgment the applicant had
extricated from innocent interested persons a total of some 10 million
AS between autumn 1979 and the end of 1980 under the pretence of a
profitable investment bearing an interest rate of 17% to 35%.  However,
a substantial part of the money had been transferred, apparently in
the interest of the applicant, to the Federal Republic of Germany and
Switzerland.

        The written reasons (Ausfertigung) for the court's judgment
were served upon the applicant on 28 August 1985.

        After the judgment had been pronounced the applicant filed a
plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court
(Oberster Gerichtshof) in which he complained that during the
proceedings his objections to an expert and his various applications
for the taking of evidence had not been considered.

        During his detention on remand, the applicant filed an
application for release on 19 May 1985, which was withdrawn by him on
4 June 1985 as he was unable to provide sufficient bail.  On 5 June
1985 he again applied for his release from detention on remand.  His
application was granted by the Review Chamber (Ratskammer) of the
Salzburg Regional Court (Landesgericht) on 17 July 1985.  The decision
was confirmed by the Linz Court of Appeal (Oberlandesgericht) on 14
August 1985.  However, as the applicant was unable to furnish the bail
of 2 million AS ordered by the Regional Court, he continued to remain
in custody.

        On 14 November 1985 the Supreme Court dismissed the
applicant's plea of nullity as being unfounded.  The applicant also
filed an appeal (Berufung) concerning the sentence whereupon on
19 December 1985 the Supreme Court reduced the applicant's sentence
from eight to six years.


COMPLAINTS

1.      The applicant now complains under Article 6 para. 1 of the
Convention that he did not receive the written reasons of the judgment
of 16 November 1982 until on 28 August 1985.  The court proceedings
had therefore not been concluded within a reasonable time in the sense
of Article 6 para. 1.  This delay is also contrary to S.270 of the
Code of Criminal Procedure  which states:

        "Jedes Urteil muss binnen vierzehn Tagen vom Tage der
        Verkündung schriftlich ausgefertigt und vom Vorsitzenden
        sowie vom Schriftführer unterschrieben werden."

        (Translation:)
        "The written reasons for every judgment must be prepared
        within fourteen days from the date of the pronouncement and
        must be signed by the president as well as the reporter."

        According to S.285 of the Code of Criminal Procedure a
complainant is granted a period of fourteen days after the written
judgment has been served in order to substantiate his plea of nullity.

        The applicant submits that, if the Regional Court had acted
promptly, he could have filed his plea of nullity much earlier.  He
refers in this respect to the fact that his appeal to the Supreme
Court eventually proved successful.  The delay could in any event not
be justified by the complexity of the case since on the day of
judgment the court had already reached its conclusion.

2.      The applicant also complains that he was detained on remand
from 1 July 1980 until 19 December 1985 when the judgment of the
Regional Court acquired legal force.  Despite his various applications
to be released, he was thus not tried within a reasonable time or
released pending trial in the sense of Article 5 para. 3.  If the
purpose of this provision is to bring about a justification for
detention, such justification was in his case prevented precisely by
this inordinately lengthy period.  The applicant also contends that
S.193 of the Code of Criminal Procedure is in its generality contrary
to the Convention insofar as until 1983 it permitted detention on
remand indefinitely after a person had formally been indicted, and
since 1983 after the proceedings have begun (Hauptverhandlung).  The
applicant submits that this lengthy period prevented him from applying
in accordance with S.46 of the Austrian Criminal Code for a reduction
of his prison sentence on account of good conduct.  Thus he could only
file his application after five and a half years of his sentence of
altogether six years had elapsed.  In view of the fact that the
original sentence of eight years could have been reduced by half, he
in fact lost one and a half years of his life on account of the
unjustifiable delay caused by the Regional Court.


PROCEEDINGS BEFORE THE COMMISSION


        The application was introduced on 10 January 1986 and
registered on 29 January 1986.

        On 8 July 1986 the Commission decided to bring the application
to the notice of the respondent Government and to invite them to
submit observations on its admissibility and merits pursuant to Rule
42 para. 2 (b) of the Rules of Procedure in respect of the complaints
under Article 5 para. 3 concerning the duration of the applicant's
detention on remand and under Article 6 para. 1 concerning the length
of the proceedings.

        The respondent Government's observations were submitted on
13 October 1986 and the reply thereto by the applicant on
8 December 1986.


SUBMISSIONS OF THE PARTIES


A.      The respondent Government


I.      The facts

        The Government's submissions as to the facts have been
summarised above in THE FACTS.

II.     Requirement under Article 26 of the Convention

        The Government submit that in respect of the complaint under
Article 6 para. 1 of the Convention, all domestic remedies were
exhausted.

        The same can also be said in respect of the complaints under
Article 5 para. 3 of the Convention, since the applicant filed an
application for release on 5 June 1985 which was granted, upon appeal,
by the Linz Court of Appeal on 14 August 1985.  The Government submit
that it could possibly be argued that the applicant has not exhausted
domestic remedies in that he did not apply for release from detention
on remand in the period between 16 November 1982, when judgment was
pronounced, and 5 June 1985.

III.    Complaints under Article 6 para. 1 of the Convention

1.      To assess the reasonableness of the length of proceedings, it
is the consistent case-law of the Convention organs to consider the
complexity of the case as well as the conduct of the applicant and of
the competent public authorities.

        The present criminal case with its economic implications and
connections with other countries is undoubtedly based on complex and
far-reaching facts.  In this respect reference may be made to the
number of criminal files, of days of hearings and of witnesses heard.
Moreover, at the time of the pronouncement, it was not necessary for
the judge to have prepared a draft version of the reasons.  In
particular for the written reasons he must again study all files
containing expert opinions, documentary evidence and the testimonies
of witnesses so that no detail is overlooked and there is no
contradiction to the statements.  Finally the judge must be able to
submit a written judgment which will bear review by the appellate
court.

2.      As far as the conduct of the applicant is concerned, it must
be noted that he urged preparation of the written reasons only once,
namely on 5 June 1985.  He also did not file a hierarchical appeal
(Aufsichtsbeschwerde) under S.15 of the Code of Criminal Procedure.

        As regards the conduct of the competent authority, the
Government refer to the Guincho case in which the Court decided that
delays could be justified if the courts were not able to cope with the
sharply increasing number of cases (Eur.  Court H.R., judgment of
10 July 1984, Series A no. 81).  Such delays, however, would have to
be kept as short as possible by the State.

        In respect of the period of time from 1 January 1982 until 31
July 1985, the respective Court Department No. 20 was overburdened in
that the number of finished cases per year never reached the total
number of new cases of the year and of unfinished business of the last
year.  In 1984, the competent judge Dr.  M had in addition to bring to
an end two jury trials, and from 1 January to 31 July 1985 one jury
trial.  On 4 June 1985, the staff tribunal (Personalsenat) of the
Salzburg Regional Court decided not to allocate new cases to the judge
in order to give him an opportunity to catch up on the backlog in
judgments.

        The question of the judge's overall responsibilities between
16 November 1982 and 6 August 1985 has been answered by the Government
in detail.  From the submitted chart it appears that from 29 November
to 29 December 1982 the judge Dr.  M was responsible, alone or together
with associate judges or lay judges, for 33 hearings, for instance on
22 December 1982 for nine hearings.  Similarly, in 1983 he was
responsible for 124 hearings, in 1984 for 277 hearings and in 1985
until 22 July for 151 hearings.

3.      As from the beginning of 1983, the supervisory administrative
authority was constantly taking measures in respect of Dr.  M in order
to enable him to complete the written reasons of the judgment of the
present case.  Disciplinary proceedings were instituted against him,
and on 4 March 1984 the Linz Court of Appeal as the disciplinary
tribunal decided to impose on Dr.  M the administrative penalty of an
admonition (Ermahnung) on account of the delays which had occurred.
Thereafter Dr.  M still did not prepare the written reasons, and he
tried to justify the delay with his excessive workload as well as with
personal problems, namely his father's death and heart surgery
undertaken on his son.  New disciplinary proceedings were then brought
against the judge.  On 1 July 1986 the Linz Court of Appeal decided
that he was to be barred from promotion for two years.  As the judge
appealed against this measure it has so far not entered into effect.


4.      In view of the consistent practice of the European Court of
Human Rights, according to which delays cannot entail responsibility
of the State if the latter takes immediate and appropriate remedial
action (cf. judgment of Zimmermann and Steiner of 13 July 1983, Series
A no. 66), the Government submit that the delay that has occurred is a
result of the complexity of the case and that the competent
authorities took all possible measures to expedite the preparation of
the written reasons of the judgment (exemption from new business;
monitoring by the supervisory authority; disciplinary measures).
However, considering the constitutionally ensured principle of the
independence of judges, guaranteed by the rules of irremovability and
freedom from transfer, as well as the resulting principle of the fixed
allocation of work, delays may occur in the interest of the certainty
of law as long as, in exceptional cases, judges who do not satisfy the
requirements which they are expected to meet may be transferred within
the framework of disciplinary proceedings.  Another judge can then be
appointed as head of the department.

        Realistically speaking, there is always the possibility that a
certain judge is not able to cope with particularly complex
proceedings.  In such a case, however, the State can be made
responsible under the Convention only insofar as arrangements have to
be made that lead to a written decision.  In the present case, this
has been done as the above explanations show.

5.      The applicant incorrectly alleges that a violation of S.270(1)
of the Code of Criminal Procedure constitutes a violation of Article 6
para. 1 of the Convention.  In a decision of the European Commission
of Human Rights it was stated that a violation of S.270(1) of the Code
of Criminal Procedure did not constitute a violation of Article 6
para. 1 of the Convention, even if the written reasons for the
judgment were not available eight months after its pronouncement (No.
4459/79, Dec. 3.4.71, Collection 38 p. 44).

6.      The issue whether or not the delays were to the detriment of
the applicant must be judged by taking all circumstances into
consideration.  Thus, at the hearing on 16 November 1982 the judgment
was pronounced publicly and the pertinent reasons were explained.  The
fact that the judgment, the contents of which were already known to
the applicant, was not put into written form had the sole consequence
that the Supreme Court was not able immediately to decide on the
appeals lodged by the applicant.  Nevertheless, he would in any case
have had to serve the sentence.  Even if the first judge had issued
the written judgment immediately, the Supreme Court would still not
have reduced the sentence to less than six years.  However, the
applicant did not have to serve more than six years.  The delay in the
preparation of the written reasons was not therefore detrimental to
the applicant.

7.      In this respect the Government submit that different criteria
must be used for judging the reasonableness of the length of
procedings before and after pronouncement of the judgment.  Before the
judgment is pronounced, the accused is under the strain of not knowing
whether he will be found guilty and if so what sentence will be
imposed on him.  The right to a speedy conclusion of the proceedings
under Article 6 para. 1 of the Convention serves especially to keep
this strain on the accused within justifiable limits.  While in the
present case, the oral pronouncement of the judgment did not
completely eliminate this uncertainty, it was certainly reduced
considerably.  The time of two and a half years required for the
written reasons of the judgment did not put as great a strain on the
applicant as a similarly long delay in the preparatory proceedings
would have posed for an accused who was detained.

        If the applicant submits that after having served two-thirds
of his sentence, he was not released on probation because the judgment
had not been motivated, he overlooks the fact that a criminal has no
right to claim parole.  His release on probation would not have been
granted if the first judge had given the written reasons of the
judgment immediately.  In the present case, the applicant's request of
28 March 1986 was rejected by two courts which held that the purpose
of the punishment is to deter the offender from further wrongdoing.  In
particular, the applicant had already been granted in earlier
proceedings the legal benefit (Rechtswohltat) of a reduction of
sentence on probation as well as a release on probation.  However,
this did not have a favourable effect on the applicant, who betrayed
the trust put in him and continued to breach the law.

        It is also for these reasons that the release on probation
granted to the applicant in other proceedings before the Innsbruck
Regional Court and before the Salzburg Regional Court had to be
revoked, so that he currently has to serve a remainder of one year,
9 months and 28 days, the sentence ending on 29 April 1988.

IV.     Complaints under Article 5 para. 3 of the Convention

1.      It must first be noted that the applicant only filed one
application for release which was eventually allowed.  Thus, after
providing bail of 2 million AS, the applicant would have been released
until the sentence had become final.  The Government cannot be blamed
for the fact that he was unable to provide bail and therefore had to
remain in prison.  It would also have been up to the applicant to file
applications for release at an earlier stage.

2.      Article 5 para. 3 of the Convention permits the interpretation
that the period to be assessed under this provision ends with the
pronouncement of the judgment of the court of first instance.  The
need to have a written judgment cannot be inferred from the law.
Moreover, according to the consistent practice of the European Court
of Human Rights, the period relevant under Article 5 para. 3 ends with
the release from pre-trial detention or the pronouncement of the
judgment of the court of first instance, which in the present case was
on 16 November 1982.  However, the complexity of the case, the
necessity to question numerous persons within the framework of mutual
legal assistance, the extent of the punishment involved, the strong
suspicion of a criminal act and the existing reasons for arrest, all
these documents imply that a pre-trial detention of two years (1 July
1980 until 16 November 1982) cannot be considered as unreasonably
long.  Up to the pronouncement of the judgment, the domestic judicial
authorities dealt with the matter expeditiously.  Therefore, the
Convention has also not been violated in this respect.

3.      As regards the applicant's allegation of a violation of S.194
of the Code of Criminal Procedure, (recte: S.193(2), last sentence, of
the Code of Criminal Procedure as applicable until 1983, and S.193(5)
of the Code as amended by the 1983 Criminal Procedure Modification
Act), the Convention contains no requirement concerning an absolute
time-limit for detention on remand.  A statutory regulation which
nevertheless makes provision for such a detention time-limit cannot
therefore be in contravention of Article 5 para. 3 of the Convention,
as it makes the end of this time-limit dependent on a certain stage of
the proceedings (i.e. legal effect of the charge, start of the main
hearing).

        Under S.193(2), last half sentence, of the Code of Criminal
Procedure, the reasonableness of the length of the detention on remand
must also be checked particularly under the aspect of the principle of
proportionality namely as to whether or not the duration is reasonable
in relation to the expected sentences.  In the case of obvious
unreasonableness, detention must be terminated.  Before the judgment
is taken, the reasonableness and the proportionality of detention on
remand and the expected sentence must be viewed in particular in the
light of the penalty in question, the severity of the offence and the
personal circumstances of the accused, namely his criminal record.  In
the light of the above, it therefore emerges that the applicant's
detention on remand was not unreasonably long.

V.      Conclusions

        In the Government's opinion the complaints under Articles 5
para. 3 and 6 para. 1 of the Convention are manifestly ill-founded.
The above explanations also clearly rule out a violation of the
Convention on the relevant points of the merits of the case.


B.    The applicant


I.      The facts

        The applicant's submissions as to the facts have been
summarised above in THE FACTS.

        As regards the Government's submissions concerning the
activities of Dr.  M, the disciplinary sanctions imposed on him, and
his being relieved from new cases, the applicant does not generally
admit that the Government's version is the correct one.  Rather the
Government should prove its account of the facts insofar as they are
legally relevant.

II.     Complaints under Article 6 para. 1 of the Convention

        In the domestic proceedings the applicant was confronted with
indifference and negligence.  It was regarded as excusable, normal and
not contrary to the Convention to keep a person waiting for 2 1/2
years for the written copy of a judgment which had already been
pronounced, although, according to domestic law, a reasoned decision
was a necessary condition for an appeal.

        S.270 of the Austrian Code of Criminal Procedure provides that
a written copy of every judgment must be prepared within 14 days of
its pronouncement.  Thus, the legislative organs of the Republic of
Austria considered it perfectly reasonable that a written copy of
every judgment shall be prepared within the prescribed period.  It
cannot therefore be argued that the length in the present case was
justified on the ground that the proceedings were complicated.  It is
beside the point that S.270 has been in force for more than 100 years,
since the legislative organs were always free to modify this
provision.

        Sound reasoning lies behind S.270.  When the court reaches its
decision after deliberation, the judgment is given in open court and
the procedure by which the court reaches its opinion is therefore
complete.  The judgment already represents the opinion of the court.
It cannot be assumed that the court did not take account of all the
circumstances coming to light in the course of the proceedings in the
reasons for its judgment.

        Thus, the Supreme Court dismissed the applicant's plea of
nullity as it assumed that all grounds had been taken into
consideration.  Indeed, the President of the Court read out the
judgment with the essential reasons.  He must therefore at the time
have been fully aware of the reasons for the judgment.  In fact after
pronouncement of the judgment the judge has nothing more to examine.
He must merely prepare the judgment in accordance with the reasons
arrived at in the deliberations of the court when reaching its
judgment.  Possibly the President should be granted a period of a few
days in order to choose suitable wording or include cross-references
in the reasons.  But he cannot be given more time than what he
requires for correcting the drafting.  Any other solution would mean
that the judge in fact alone produced the reasons for the judgment and
that the other judges (a professional judge and two lay assessors) did
not really participate in reaching the decision of the court.

        The complexity of the case might justify a long trial and
consequently a longer period of detention on remand up to the end of
the trial.  If, however, the trial is conducted conscientiously and
completely, this serves the exclusive purpose of establishing the
truth.  For this very reason the Code of Criminal Procedure, which is
based on a strict concentration of proceedings and on a direct and
immediate connection between the taking of evidence and the reaching
of the judgment, requires that the judgment shall be delivered in the
course of the same trial proceedings.  If a trial is interrupted it
must be recommenced from the beginning.  Consequently the entire
proceedings must take place continuously before the court.  There is
therefore no difficulty in preparing a written judgment within 14 days
as required by S.270.

        The period to be taken into account in assessing whether the
length of the proceedings was reasonable within the meaning of Article
6 para. 1 runs up to the time when the judgment becomes final.
Therefore, the time required in the present case is no longer
reasonable within the meaning of Article 6 para. 1, particularly since
an appeal to the Supreme Court can only be entered after the written
reasons of the judgment have been prepared.

        As regards the case-load before Court Department No. 20, the
number of new cases was in no way unusual or higher than in other
departments.  Such a long time for preparing the written copy of an
oral judgment is unique.  Other judges have even more complicated
cases to deal with, in which the preparation of the written reasons
did not take so long.

        Dr.  M in particular has considerable arrears and, as the
applicant points out in respect of another case not before the
Commission, he is clearly not in a position to cope with his work.  For
instance, another judge, Dr.  G, of Department No. 15, has as much work
to get through and yet has no arrears.  The applicant therefore asks
the Commission to request the Government to provide a statement on the
number of judgments Dr.  M has given for which he has not provided
written copies and how long on average he required to produce the
written judgment.

        The measures taken by the Government in the present case were
inadequate and irrelevant.  Clearly, only in 1984 did the authorities
find it necessary to punish Dr.  M with one of the mildest disciplinary
sanctions for unlawfully failing for almost two years to prepare the
written reasons.  In 1985, no similar measures were taken.  In 1986, a
disciplinary sanction was again pronounced against Dr.  M which was
irrelevant for the present case.  In fact, the Government had at its
disposal much more effective measures to remedy the situation.  For
instance, S.104 of the Judicial Service Act (Richterdienstgesetz)
provides for the disciplinary sanctions of reprimand, cancelling
increments, reduction of salary, transfer to another post without
transfer allowances, retirement on reduced pension and dismissal.  In
fact, the Government only imposed the two mildest disciplinary
sanctions, and only the sanction of a reprimand was imposed before the
written reasons were prepared.  Under Section 51 of the Judicial
Service Act the staff senate of the competent court must prepare an
official report every year on each judge's work.  In the reports on
Dr.  M there is no mention between 1982 and 1985 that his work was
unsatisfactory and that he was not even able to produce the written
reasons of judgments which had already been pronounced.  In this
respect the applicant also asks the Commission to request the
Government to submit the relevant reports on Dr.  M in order to
demonstrate that in fact nothing was done to remedy the situation.

        In fact, the intake of new cases should have been stopped.  It
would have been quite easy to transfer Dr.  M in the years 1983-1985 to
another division and in particular to employ him as an investigating
judge since this function involves much less work.

        In Austria, a judge is not subject to directions but is on the
other hand part of the executive of the Government and performs
executive duties.  It is incomprehensible that such an officer should
not be identified with the Government in his actions.  In the present
case, Dr.  M was in the executive organ of the Government.  In any
event, the present application is justified since the Government have
provided no legislative measures as to how a judge is to be forced to
perform his duty in the relevant case or to ensure action in
accordance with the Convention.  It follows therefore that the
argument by which the Government is seeking to excuse itself is not
relevant, particularly as Dr.  M represented the Government at this
time and in this case.

        The Government have stated as a precedent for the proper time
to prepare the written reasons only one case in which the time
required was eight months.  It is possible that eight months in fact
do not yet fall within the ambit of Article 6 para. 1 but more than 2
1/2 years certainly do.  It cannot also be argued that after the
pronouncement of the judgment the procedural guarantees required by
Article 6 para. 1 need not be so strictly applied and were
sufficiently complied with in the present case since the accused had
already learned of his conviction and his nervous tension was not so
great.  In particular, the judgment at first instance may be
incorrect.  Moreover, Article 6 para. 1 guarantees that the first
instance proceedings shall be completed in a reasonable time.

III.    Complaints under Article 5 para. 3 of the Convention

        This provision is not intended in combination with Article 5
para. 1 (c) to guarantee that detention on remand shall be set off
against a sentence of imprisonment.  Its object is rather to limit
restrictions on a person's freedom by detention on remand before being
sentenced to imprisonment as provided for by domestic law, and, in any
event, to ensure that this detention without a final sentence is not
longer than necessary.  The concept of a "conviction" can accordingly
only be understood within the meaning of this provision as a final,
enforceable decision which finally determines the charge.  Article 5
para. 3 is therefore in no way concerned with whether the applicant
will possibly at a later stage have to serve a sentence which is just
as long or perhaps longer.  This provision is also not concerned with
whether the applicant suffered "damage".  Its object is rather to
ensure that when the matter is not determined within a reasonable time
the applicant has a right to be released from detention.  Of course,
he may later receive a heavier sentence which he must duly serve.

        Only after an application was made (an unnecessary condition
according to the text of the Convention) on 17 July 1985 the Review
Chamber decided that the applicant should be released on bail.  This
release was ordered more than 2 1/2 years after the first instance
judgment had been pronounced.  This period of time would have been far
from complying with the concept of a reasonable time.  The Government
are trying to present the situation as though two years of detention
on remand was perfectly normal in the instant case.  That may be so
but this period had already long been served when judgment was given
at first instance.  In fact, the applicant had to undergo a further
2 1/2 years' detention on remand before being released on bail after
judgment was given and in spite of the fact that the written reasons
were not prepared.  That, however, cannot comply with the requirement
of a conviction within a reasonable time.

        In Article 5 para. 3 it is provided that release may also be
conditioned by guarantees to appear for trial.  The above-cited
decision of the Review Chamber discloses that bail was required on
account of the danger of the accused absconding.  Appearance in
court is no longer necessary at this stage of the proceedings.  The
accused is free to decide whether he wants to appear in the proceedings
concerning an appeal and a plea of nullity before the Supreme Court.
Accordingly, bail can only apply to the execution of the sentence.
But this is not covered by Article 5 para. 3.  The latter also does
not require an application for release.  This right must be granted by
the Government of their own motion as a matter of course.

        Article 46(1) of the Austrian Criminal Code which provides for
the remittance of sentence confers a right on the offender.  In their
observations the Government seek to show that this is not correct.
But doctrine and practice unanimously hold that there is a legal right
to a conditional release.  It is also no longer retrospectively
possible to reconstruct what the decision on conditional release would
have been, if it had not been made only after the sentence had been
reduced to six years.  Indeed it is by no means improbable that, if
the sentence had been one of eight years, the decision would have been
different.  Possibly it would also have been different, if Dr.  M's
manner of proceeding had not in fact created a fait accompli.

        The applicant opposes the Government's view that it does not
contradict the Convention if, under Austrian law, detention on remand
may be continued without limit when the indictment becomes final.  Of
course, domestic legislation is also subject to the Convention.  If,
therefore, the courts are bound by the provisions of domestic law to
keep a person in detention for over 2 1/2 years it is obvious that the
law on which such conduct rests is contrary to the Convention.  The
Government have nothing to advance in their justification except that,
according to their interpretation, Article 5 para. 3 of the Convention
only provides protection until judgment is given at first instance.
Anything else would be mere hair splitting and an unduly literal
interpretation of the Convention.  The domestic legislature should
therefore provide the necessary guarantees, for instance if the
written reasons are not prepared within the 14-day period specified in
S.270 of the Code of Criminal Procedure, that the accused must be
released or that he must be released after a somewhat longer period.
This would also be an effective means of ensuring that the judge sees
to it that the written reasons are prepared within a period which
ensures the observance of the Convention guarantees.

THE LAW

1.      The applicant complains that he did not receive the reasons
for the judgment of 16 November 1982 until 28 August 1985.  If the
Regional Court had acted promptly he could have filed his plea of
nullity much earlier.  The delay which was also contrary to S.270 of
the Code of Criminal Procedure could not be justified by the
complexity of the case since on the day of the pronouncement of the
judgment the Regional Court had already reached its conclusions.  As a
result, the Court proceedings had not been concluded within a
reasonable time in the sense of Article 6 para. 1 (Art. 6-1) of the Convention,
the first sentence of which states:

        "1.     In the determination of his civil rights and
        obligations or of any criminal charge against him, everyone
        is entitled to a fair and public hearing within a reasonable
        time by an independent and impartial tribunal established by
        law."

        The Government point out that the delay in the preparation of
the written reasons for the judgment is the result of the complexity of
the case.  During the years 1982-1985 the Court Department responsible
for the case was overworked.  Nevertheless, the supervisory
administrative authority constantly took all possible measures in
respect of the judge concerned in order to expedite the proceedings.
In particular, on 4 March 1984 a disciplinary admonition was imposed
on him, and on 1 July 1986 he was barred from promotion for two years.
In any event, different criteria must be considered for judging the
reasonableness of the length of the proceedings before and after the
judgment.  In the present case, the oral pronouncement of the judgment
considerably reduced the uncertainty and therefore the strain upon the
applicant.

        The Commission considers that the complaint concerning the
length of the proceedings raises difficult questions of fact and law
which are of such complexity that their determination should depend on
an examination of the merits.  This part of the application is
therefore not manifestly ill-founded and must be declared admissible,
no other grounds for declaring it inadmissible having been
established.

2.      The applicant also complains that he was detained on remand
from 1 July 1980 until 19 December 1985 when the judgment of the
Regional Court acquired legal force.  The applicant submits that
this lengthy period prevented him from applying in accordance with
S.46 of the Austrian Code of Criminal Procedure for a reduction of his
prison sentence on account of good conduct.  Thus he could only file
the respective applications after 5 1/2 years of his sentence of
altogether six years had already lapsed.  The applicant contends that
despite his various applications to be released he has not been tried
within a reasonable time or released pending trial in the sense of
Article 5 para. 3 (Art. 5-3) of the Convention which states:

        "Everyone arrested or detained in accordance with the
        provisions of paragraph 1 (c) of this Article shall be
        brought promptly before a judge or other officer authorised
        by law to exercise judicial power and shall be entitled to
        trial within a reasonable time or to release pending trial.
        Release may be conditioned by guarantees to appear for
        trial."

a)      The Government submit in this respect that the applicant has
complied with the condition of the exhaustion of domestic remedies
within the meaning of Article 26 (Art. 26) of the Convention, inasmuch as he
filed an application for release on 5 June 1985 which was granted,
upon appeal, by the Linz Court of Appeal on 14 August 1985.  However,
it could possibly be argued that the applicant has not exhausted
domestic remedies in that he did not apply for his release from
detention on remand a short time after 16 November 1982, when the
judgment was pronounced, but waited until 5 June 1985.

        The Commission notes that on 5 June 1985 the applicant applied
for his release from detention on remand.  His application was
granted, upon appeal, by the Linz Court of Appeal on 14 August 1985.
However, as the applicant was unable to provide as a condition for his
release the required bail of 2 million AS he remained in custody.

        The remedy employed by the applicant thus led to his release
on condition of providing bail, though it did not lead to the
applicant's actual release.  Moreover, only with the lapse of time did
the length of detention itself become for the authorities concerned an
increasingly important factor favouring the applicant's release from
detention.  As a result, it cannot be assumed that an earlier
application for release would have led to a different and more
favourable result for the applicant.

        The Commission is therefore satisfied that in respect of his
complaint concerning the length of detention the applicant has
exhausted domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention.

b)      The Government also submit in respect of the well-foundedness
of the complaint that the applicant could have filed an application
for release at an earlier date.  In any event, the relevant period under
Article 5 para. 3 (Art. 5-3) ends with the release from pre-trial detention or
the pronouncement of the judgment of the court of first instance which in the
present case was 16 November 1982.  The Government contend that the length of
detention up to that date cannot be regarded as unreasonably long in view of
the complexity of the case, the necessity to question numerous persons within
the framework of mutual legal assistance, the extent of the punishment
involved, the strong suspicion of a criminal act and the existing reasons for
arrest.

        The Commission considers that the applicant's complaints
concerning the length of his detention on remand raise questions of
fact and law whose determination should depend on an examination of
the merits.  This part of the application is therefore also not
manifestly ill-founded and must be declared admissible, no other
grounds for declaring it inadmissible having been established.

        For these reasons, the Commission

        DECLARES THE APPLICATION ADMISSIBLE without in any way
        prejudging the merits of the case.


Head of Division acting as Secretary
        to the Commission             Acting President of the Commission


          (K. ROGGE)                          (G. SPERDUTI)