THE FACTS

The facts of the case, which are apparently not disputed, may be summarised as
follows:

The applicant is an Austrian citizen, born in 1917, and when lodging this
application was detained in the special prison hospital of Vienna
(Inquisitenhospital). In the proceedings before the Commission the applicant
is represented by Rechtsanwalt Dr. Leo Kaltenbäck, a lawyer practising in
Graz.

On 23 January 1969 the applicant was arrested on suspicion of murder.

By judgment of the Regional Court (Landgericht) of Vienna of 10 February 1970
the applicant was convicted of murder and sentenced to five years'
imprisonment. The applicant was found to have made a suicide pact with his
mistress, in execution of which, on 23 January 1969, he shot her and then
himself with a pistol. He also introduced exhaust fumes into the interior of
his car. The applicant, however, survived this but his mistress died. The
post-mortem examination revealed that she had died of carbon monoxide
poisoning. The applicant himself was badly injured; he is paralysed and was
detained in the above prison hospital.

The above judgment was publicly pronounced on 10 February 1970, but it appears
that the written judgment was only served on the applicant on 25 May 1970. The
applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme
Court (Oberster Gerichtshof) but, as he was not yet in possession of the
written judgment, no further steps could be taken by him and the Supreme Court
was not in a position to decide on the appeal. The Public Prosecutor also
lodged an appeal against sentence, and already on 25 February 1970 gave the
full grounds of his appeal. In this respect it is undisputed, and admitted by
the respondent Government, that the Public Prosecutor could do so since he had
access to the files which already contained the draft judgment.

On 20 March 1969 the applicant's counsel requested the Regional Court to
release the applicant from custody. He maintained that there were no reasons
whatsoever to justify the applicant's detention; the danger of the applicant
absconding obviously did not exist as he was totally paralysed; no risk of
collusion could be supposed since there were no witnesses; and finally it was
emphasised that the danger of the applicant committing further offenses was
excluded, since he had acted in an emergency situation and because he was
paralysed. The applicant finally offered bail of 20.000 Austrian Schillings,
which was his total savings. He also pointed out that, in the event of his
release, he intended to go to the hospital at Graz where his family lived.

By decision of 21 March 1969 the Regional Court of Vienna dismissed the
applicant's request on the ground that release pending trial was excluded by
law in similar cases in view of the provisions of Article 180 (2) of the
Austrian Code of Penal Procedure (Strafprozessordnung). This paragraph reads
as follows:  "detention on remand has to be ordered if a crime is involved
where, according to law, a minimum penalty of ten years' imprisonment is
fixed". Article 194 of the same Code, however, authorises the Court of Appeal
to grant such release. The applicant failed to appeal to this Court.

On 27 October 1969 the applicant's lawyer wrote a letter to the President of
the Regional Court of Vienna and suggested that the President should urge the
Investigating Judge to accelerate the investigation in view of the physical
condition of the applicant.

The applicant, after his conviction on 10 February 1970 by the Court of First
Instance on 13 February 1970 he again requested his release pending trial. He
indicated that he had appealed against the Regional Court's judgment and that
the Public Prosecutor had also appealed towards the sentence. The applicant
maintained that it was inhuman to keep him in detention in view of his bodily
condition.

By decision of 6 March 1970 the Regional Court dismissed the applicant's
request in view of the terms of Article 180 (2) of the Code of Criminal
Procedure whereby no release could be granted. Furthermore, reference was made
to the established practice as regards Article 194 of the above Code which
provides that the Court of Appeal can grant release pending trial even in
cases similar to the applicant's. According to this practice, such release
cannot be granted, despite the wording of this Article. The Court stated that
Article 194 allowed release only in cases where a 10 years' minimum penalty
was fixed but not where a life sentence was involved.

The applicant appealed against this decision to the Court of Appeal, but by
decision of 24 June 1970, the Court confirmed the Regional Court's refusal.
The Court of Appeal stated that an interpretation of Article 194 in the light
of other provisions of Austrian criminal law leads to the result that no
release can be granted in case of crimes which according to the law are to be
punished with life imprisonment, but only in cases where a ten years's minimum
penalty was provided for. The Court referred in this respect to an order made
by the Ministry of Justice of 23 December 1919, which gives such an
interpretation of Article 194. The Court further pointed out that the Supreme
Court by decision of 6 May 1964 has again confirmed this application of the
above Article and that since then this was the leading case for all the Courts
of Appeal.
The Supreme Court in its above decision has discussed the bearing of the
European Court of Human Rights on this provision of the Code of Penal
Procedure, but has found it not to be at variance with Article 5 (3) of the
Convention. The Supreme Court held in this respect: "Article 5 (3) of the
Convention does not provide that a person remanded in custody has, under all
circumstances, the right to release pending trial, but confers such a right
only as an alternative to conviction within a reasonable time".

As regards the completion of the written judgment of the Regional Court, it
appears that this was delayed because the transcript of the trial was not
available until shortly before 19 May 1970.

On 19 May 1970 the Presiding Judge gave the order to serve the judgment on the
applicant, who received it on 25 May 1970. On 5 June 1970, applicant's counsel
filed his full appeal with the Supreme Court, which gave judgment on 8 October
1970. The Court dismissed the appeals both of the applicant and of the Public
Prosecutor, and the full text of the judgment was served on the applicant on
18 November 1970.

On 16 October 1970 the applicant requested his release from detention under
Articles 398 of the Rules of Penal Procedure and 5 of the Execution of
Sentences Act (Strafvollzugsgesetz) for physical unfitness for detention. By
decision of 22 October 1970 the applicant was released from prison for this
reason.

Complaints of the applicant

In his application to the Commission, the applicant complains:

1.   that his detention in a prison hospital constituted inhuman treatment
within the meaning of Article 3 of the Convention;

2.   that his detention was not justified since there existed no reasons which
necessitated his detention. He alleges that his detention cannot " reasonably
be considered necessary to prevent his committing an offense or fleeing after
having done so"; the applicant alleges that, consequently Article 5 (1) (c)
has been violated;
3.   that Article 5 (3) has been violated because of the established practice
of the Austrian judiciary not to grant release pending trial in similar cases,
despite the provisions of Article 194 of the Austria Code of Penal Procedure.
He alleges in this respect that he was not tried within a reasonable time
since it took more than three months to obtain the written judgment from the
trial court;

4.   that the Austrian courts did not decide within a reasonable time upon his
request for release pending trial;

5.   that Article 6 (1) has been violated since the length of the proceedings
in such a simple case was not justifiable.

History of the proceedings before the Commission

On 28 April 1970 the President of the Commission, acting ex officio, under
Rule 38, 1 of the Commission's Rules of Procedure, gave priority to this
application.

A group of three members of the Commission carried out, on 20 July 1970 a
preliminary examination of the application, and suggested that the respondent
Government should be invited to submit its written observations on the
admissibility of parts of the application in accordance with Rule 45, 2 of the
Rules of Procedure.

On 5 October 1970 the Commission took a partial decision and declared
inadmissible that part of the application which concerns the applicant's
complaint that his detention in the prison hospital constituted an inhuman
treatment under Article 3 of the Convention, and that his detention on remand
was not justified under Article 5 (1) (c) of the Convention. At the same time,
it decided with respect to the remaining parts of the application to give
notice to the Austrian Government of these parts of the application and to
invite the Government to submit its observations on the admissibility of the
remaining complaints.

On 4 December 1970 the Austrian Government submitted its written observations,
and on 12 January 1971, supplementary observations of the respondent
Government were received in the Commission's Secretariat; both observations
were communicated to the applicant, who submitted his observations in reply by
letter of 2 February 1971. In his reply the applicant indicated that he wished
to withdraw his complaint that the Austrian courts did not decide within a
reasonable time upon his request for release pending trial.

A group of three members of the Commission carried out, on 10 March 1971 a
second examination of the application and reported thereof to the Commission.
The Commission, on 31 March 1971, examined the admissibility of the
application. The Commission was of the opinion that the questions arising on
this complaint were sufficiently clear and that it would not invite the
parties to make oral explanations under Rule 46, 1 of the Rules of Procedure
unless the respondent Government wished to do so. On the same day, on the
Commission's question, the respondent Government informed the Commission that
in the circumstances it did not wish to make further oral explanations.

Submissions of the parties

The submissions of the parties may be summarised as follows:

1.   As to the applicant's detention on remand

The respondent Government submitted that, in view of the jurisprudence of the
European Court, the period of the applicant's detention on remand started on
23 January 1969 and ended on 10 February 1970, when the Regional Court had
given its judgment. The applicant's subsequent detention was, according to the
Government, a lawful detention after conviction within the meaning of Article
5 (1) (a) of the Convention. Consequently, the guarantee of Article 5 (3) of
the Convention only applied to the applicant's detention until the conviction
by the Court of First Instance on 10 February 1970. With respect to this
period of the detention the Government submitted that the applicant had not
exhausted the domestic remedies available to him under Austrian law according
to Article 26 of the Convention. It was said that the request of the applicant
for release (Haftbeschwerde) was not an effective remedy in view of the
provisions of Article 180 of the Code of Penal Procedure, which provide for an
obligatory detention on remand, which could not be attacked with such a
request.

With respect to the length of the applicant's detention it was pointed out
that this had been reasonable, since it had lasted for little more than a year
only, and this had been adequate in view of the nature of the charges laid
against the applicant.

The applicant replied that according to Article 194 (1) of the Code of Penal
Procedure the Court of Appeal could grant release in such cases, where a
minimum penalty of ten years' imprisonment was involved and that this also
should apply to cases where a life sentence is fixed by the law. The
interpretation of the Austrian courts not to grant release in these cases was,
according to the applicant, erroneous, and could not be based on the terms of
the law. He also alleged that this interpretation of Article 194 could not be
applied on the applicant's detention after his conviction by the Court of
First Instance, since he had been given less than ten years' imprisonment,
namely a five years' sentence.

2.   As to the alleged violation of Article 5 (4) of the Convention

The respondent Government submitted that the applicant had requested his
release on 20 March 1969 and the Investigating Judge had given his decision on
21 March 1969; the applicant's second request for release, dated 13 February
1970 had been dismissed by the Regional Court on 6 March 1970, the applicant's
further appeal to the Court of Appeal had been dismissed by decision of 24
June 1970. The Government submitted in this respect that the Court of Appeal
had only been given the files by 5 June 1970; until then they had been needed
by the trial court for the completion of the judgment. In these circumstances,
it was submitted, no unreasonable delay could be found in the proceedings of
the courts.

The applicant replied that he withdrew his complaints under Article 5 (4) as
he admitted that the courts had not decided within a reasonable time.

3.   As to the alleged violation of Article 6 (1) of the Convention (length
of proceedings)

The respondent Government submitted that the applicant in this respect had not
exhausted his remedies according to Article 26 of the Convention, since he had
failed to lodge a formal disciplinary complaint (Dienstaufsichtsbeschwerde)
under Article 78 of the Organisation of Judiciary Act
(Gerichtsorganisationsgesetz) and Article 15 of the Code of Penal Procedure.
With respect to the delay in completing the written text of the judgment,
given orally on 10 February 1970, it was also submitted that the applicant had
not exhausted his remedies either since he had failed to bring proceedings
under the Liability of Officials Act (Amtshaftungsgesetz) against the judge
concerned. The Government in this respect invoked Article 270 of the Code of
Penal Procedure which imposed the legal obligation on the judge to complete a
judgment within three days after its pronunciation. The Government admitted
that the Presiding Judge had acted contrary to this provision and emphasised
that the applicant, therefore, had had the possibility of requesting
compensation under the above Act.

The Federal Government also submitted that the period as such had not been
unreasonably long in view of the complexity of the case and the particular
circumstances which had made the investigation of the crime difficult. It was
pointed out that the applicant himself, in view of his bad state of health,
could not be heard extensively by the Investigating Judge until 12 June 1969
and that the opinion of the expert in forensic medicine on the crime had been
given as late as 14 July 1969 although it had been requested already on 29
January 1969. The applicant, furthermore, had been examined as to his criminal
responsibility, and this had caused further delay. Finally, it was mentioned
that the applicant's total lack of memory, although understandable in view of
his injuries, had also prolonged the investigation.

The applicant replied that the period had been too long, in view of the
relatively simple case. The files showed, according to him, that for several
months, namely between January and July 1969, nothing had happened in the
investigation opened against the applicant. The applicant also submitted that
the reason given by the respondent Government for the delay in the completion
of the written judgment, namely that the Court had been short of typists and
that thus the transcript of the hearing could not be typed, was no excuse; in
this respect reference was made to Article 27 (4) of the Code of Penal
Procedure which provided that this transcript had to be delivered within 48
hours after the trial. The applicant also pointed out that the Government had
admitted that the Public Prosecutor had been able to consult the file at an
earlier moment, and that he had found the draft judgment in the files on 25
February 1970.

THE LAW

1.   The applicant, in his application of 23 April 1970 complained that the
Austrian courts did not decide within a reasonable time upon his requests for
release pending trial and, therefore, violated Article 5 (4) (Art. 5-4) of the
Convention. On 2 February 1971, the applicant, however, informed the
Commission that, in the light of the Government's observations on the
admissibility of the application, he wished to withdraw his above complaint.
The Commission finds that there are no reasons of a general character
affecting the observance of the Convention which would necessitate a further
examination of this complaint, and it therefore accepts the applicant's
withdrawal.

2.   The applicant further complained that the criminal proceedings opened
against him in Austria were not conducted with sufficient speed and that he
was thus not tried within a reasonable time within the meaning of Article 6
(1) (Art. 6-1) of the Convention. The Commission first notes, and it is not
disputed, that the proceedings against the applicant began with his arrest on
23 January 1969 and ended with his final conviction by the Supreme Court and
the deliverance of its written judgment of 18 November 1970. The period to be
taken into consideration therefore comprises one year, nine months and three
weeks. The investigation of the crime of which the applicant was charged was
not concluded until 20 October 1969, although the authorities were in
possession of the applicant's confession. The indictment as filed with the
Public Prosecutor on 18 November 1969. The applicant's trial opened on 9
February 1970 and ended with his conviction by the Vienna Regional Court on 10
February 1970. The Supreme Court gave its judgment on 8 October and the
written text was served on the applicant on 18 November 1970.

The Commission further finds it undisputed that the applicant himself had
totally lost his memory with regard to the details of the incident which
consequently had to be reconstructed by the Investigating Judge. For this
purpose, a criminological examination and the opinion of an expert in forensic
medicine were requested by the Judge on 29 January 1969 and these were
received on 14 July 1969. This opinion was also necessary as on it depended
the qualification of the applicant's offense under the Austrian Penal Code.
Apparently only such an examination could clarify the question whether the
applicant had committed the offense of murder under Article 134 of the Penal
Code or the offense of murder at the request of the victim (Tötung auf
Verlangen) under Article 139a of the Code.

It was furthermore necessary to carry out a psychiatric examination of the
applicant. The Commission, therefore, is of the opinion that the length of the
proceedings was not, in all these circumstances, unduly long and that
therefore this complaint of the applicant is manifestly ill-founded within the
meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.

3.   The applicant, finally, complains that, due to the application of Article
180 of the above Code, which provides for an obligatory detention on remand in
cases similar to the applicant's, he had been kept in detention for an
unreasonably long period, and that thus Article 5 (3) (Art. 5-3) of the
Convention had been violated. The applicant complains, in this respect, that
the Austrian courts wrongly interpreted Article 194 of the same Code which,
according to the applicant, authorises the Court of Appeal to release a person
detained in remand under Article 180 of the said Code.

The respondent Government objected that, in this respect, the applicant had
not exhausted his remedies under Austrian law and had thus not complied with
the provisions of Article 26 (Art. 26) of the Convention. The applicant
contested this and stated that he had brought his case before the Court of
Appeal (Oberlandesgericht) by means of complaint against his detention under
the Austrian Code of Penal Procedure (Haftbeschwerde), and that no other
remedy existed. The respondent Government, however, submitted that such
complaints were not be to considered as being effective remedies under the
Convention, since detention on remand was obligatory in a case like the
applicant's and even the Court of Appeal could not grant his release. The
Government appears to conclude from this that the applicant had not exhausted
the remedies available to him.

The Commission has had regard to the situation under Austrian law which
provides one single remedy against detention on remand, namely the above
formal complaint under the Code of Penal Procedure. Having noted the uniform
practice of the Austrian courts under Article 180 of this Code, with regard to
the obligatory detention on remand and the submissions of the respondent
Government, the Commission finds that this remedy, could not, in the present
case, be considered to be effective under "the generally recognised rules of
international law", as mentioned in Article 26 (Art. 26) of the Convention; in
particular, detention on remand was obligatory in the applicant's case and
release could not be granted by the courts.

The Commission considers irrelevant in this respect the argument put forward
by the applicant that the Austrian courts wrongly interpreted the provisions
of the above Code and that the Court of Appeal, by virtue of Article 194 of
the Code, could release a person even if he was charged with a crime for which
the law fixes a life sentence. The Commission finds that it has to accept, as
a fact, the common interpretation of Article 194 by the Austrian judiciary
which was confirmed by the respondent Government as being generally accepted
and applied in Austria, namely that, as indicated above, the Court of Appeal
could not grant the applicant's release under Article 194 of the Code.
Accordingly, the Commission is satisfied that the applicant had not at his
disposal any remedy within the meaning of Article 26 (Art. 26) of the
Convention and, consequently, this part of the applicant cannot be rejected
under this Article for non-exhaustion of domestic remedies.

With respect to the substance of this last complaint by the applicant, the
Commission first has regard to the terms of Article 5 (3) (Art. 5-3) of the
Convention, which provides that "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".
When considering whether this applicant's detention on remand was reasonable,
the Commission has in mind the case-law of the European Court of Human Rights
(see Eur. Court H.R., "Wemhoff" Case, judgment of 27 June 1968; Eur. Court
H.R. "Neumeister" Case, judgment of 27 June 1968; Eur. Court H.R. "Matznetter"
Case, judgment of 10 November 1969; Eur. Court H.R., "Stögmüller" Case,
judgment of 10 November 1969)  In the "Neumeister" Case, paragraphs 3 and 4 of
"THE LAW" of the judgment of 27 June 1968, the European Court of Human Rights
stated as regards Article 5 (3) (Art. 5-3) of the Convention: "The Court is of
the opinion that this provision cannot be understood as giving the judicial
authorities a choice between either bringing the accused to trial within a
reasonable time or granting him provisional release even subject to
guarantees. The reasonableness of the time spent by an accused person in
detention up to the beginning of the trial must be assessed in relation to the
very fact of his detention. Until conviction he must be presumed innocent, and
the purpose of the provision under consideration is essentially to require his
provisional release once his continuing detention ceases to be reasonable".
Consequently, the Commission's finding under 2, above, that the criminal
proceedings against the applicant were not unreasonably long does not
necessarily mean that since the obligation of the courts to release a detained
person pending trial still exists in the case where such a trial is held
"within a reasonable time" [Article 5 (3) (Art. 5-3)].

In considering the reasonableness of the period of the applicant's detention
on remand, the Commission, according to the above jurisprudence of the
European Court, has examined the reasons given by the Austrian courts in their
decisions on the applicant's requests for release. It follows from these
decisions that it is common ground between the parties that the usual reasons
for detention on remand did not exist in the applicant's case:  the applicant
was totally paralysed and, consequently, there was no risk of his absconding
or of his committing further offenses; the applicant had fully confessed to
the offense and there were no witnesses of the incident, and, consequently,
there was no risk of collusion with other persons. The sole ground for the
applicant's detention was the existence of Article 180 of the Austrian Code of
Penal Procedure which orders obligatory detention on remand in cases where the
person concerned is charged with a crime for which the law provides a minimum
penalty of ten years' imprisonment.

The Commission, therefore, finds that, in the light of the submissions of the
parties, the applicant's complaint about his detention on remand raises an
important issue concerning the application and interpretation of the
Convention whose determination should depend upon an examination of the merits
of this part of the application. Accordingly, this complaint cannot be
considered as being manifestly ill-founded within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention.

For these reasons the Commission

(1)  DECIDES TO DISCONTINUE THE EXAMINATION OF THE APPLICANT'S COMPLAINT UNDER
ARTICLE 5 (4) (Art. 5-4) OF THE CONVENTION;

(2)  DECLARES INADMISSIBLE THE APPLICANT'S COMPLAINT AS TO THE LENGTH OF THE
CRIMINAL PROCEEDINGS AGAINST HIM;

(3)  DECLARES ADMISSIBLE THE PART OF THE APPLICATION THAT RELATES TO THE
PERIOD OF THE APPLICANT'S DETENTION ON REMAND.