THE FACTS

The facts of the case may be summarised as follows:
The applicant is an Austrian citizen, born in 1930 and was when
submitting his application to the Commission detained in the Vienna
Prison hospital. He is now resident at Klagenfurt.

The application concerned three separate complaints namely (a) the
refusal of the Austrian authorities to grant compensation for the
applicant's detention on remand in Austria from .. November 1965 to ..
December 1969; (b) his conviction by the Vienna Regional Court of ..
April 1972; and (c) his detention on remand in Austria from .. April
1972 until .. December 1972.

Parts (a) and (b) of the application have been declared inadmissible
by the Commission's partial decision of 31 May 1973.

With regard to his complaints under Court above, the applicant stated
his case as follows:

The applicant was arrested on .. May 1971 under the suspicion of having
committed fraud. On .. August 1971 he was released on bail of 200,000
Austrian schillings (approximately 45,000 French francs). On .. April
1972, after his conviction by the Trial Court, the same Court decided
that the applicant should be detained on remand pending his appeal to
the Supreme Court. The Trial Court gave the following reasons for his
decision. At first it stated that the danger of the applicant's
absconding existed and reference was made to certain proceedings in
Wiener Neustadt in 1963 in the course of which the applicant had been
released on the condition that he reported regularly to the police and
the Trial Court. It is said that the applicant did not fulfil this
condition and disappeared under a false name in order to escape arrest.
The Court went on to say that the applicant had no really fixed abode
in Austria, since he changed his domicile continuously and did not
observe the general legal obligation to report any change of domicile
to the administration (Meldepflicht) and that he had indicated that his
permanent residence was Zurich, where his wife and his three children
lived.

It was also said that the overall part of the applicant's property was
situated in Switzerland and in Italy, and that his assets in Austria
were insignificant. The Court also stated that the applicant after his
release on bail in August 1971, made, with the consent of the Court,
several journeys abroad and was once arrested in Italy under the
suspicion of fraud. The Court also mentioned that the danger of flight
had increased as a consequence of the applicant's conviction and the
four years' sentence, and that bail of 200,000 Austrian schillings was
no longer sufficient to prevent the applicant from absconding.

On .. May 1972 the Vienna Court of Appeal (Oberlandesgericht) confirmed
on the applicant's appeal, the Lower Court's decision, for the same
reasons as set out in the Trial Court's decision.

On .. May 1972 the applicant requested his release from the Vienna
Regional Court. He stated that the danger of his flight did not exist,
and that the 1963 incident was the consequence of a mistake of the
Wiener Neustadt Court which had served the summons of the applicant to
the wrong lawyer, so that the former did not know that he was summoned
to appear in court. The applicant further indicated that he had always
in the past observed the conditions of his release, and that he had
regularly reported to the police. He then stressed his very bad state
of health and mentioned an expert opinion made by the Vienna Institute
for Forensic Medicine during his 1969 trial.  He also stated that he
had been, for almost three years, in detention on remand, and that,
consequently, he could expect that this would be considered when he
asked for a pardon. The applicant offered an increased bail of 250,000
Austrian schillings and to deposit his passport with the police. He
finally stated that his relations to foreign countries were limited to
Switzerland and Italy and that a flight into these two countries would
be senseless, since well applied extradition agreements existed between
these countries and Austria.

On .. June 1972 the Regional Court's Judges' Chamber (Ratskammer)
rejected the applicant's request. The Court held that the Appeals Court
had previously confirmed that the danger of the applicant's absconding
existed, and that the situation meanwhile had not changed.

On .. June 1972 the applicant appealed to the Court of Appeal. He
repeated the reasons of his request of .. May 1972. No details are,
however, submitted as to the decision of this Court.

On .. July 1972 the applicant again requested his release on bail, but
on .. October 1972 the above Judges' Chamber again refused to grant
this request. The Court referred to the danger of flight and then dealt
with the applicant's allegation that the continuing detention on remand
would cause serious and lasting injuries to his health. The Court said
that this allegation was unfounded in view of an opinion of the
above-mentioned Institute for Forensic Medicine dated .. October 1972,
according to which the applicant was fit for detention provided that
his state of health was supervised in the Vienna Prison hospital (where
he was then detained). The Court then mentioned that the applicant
could not invoke Section 5 of the new Execution of Sentences Act
(Strafvollzugsgesetz), since this was only to be applied mutatis
mutandis on prisoners on remand. For the decision whether a person
should be remanded in custody, and whether this detention should
continue Section 180 of the Code of Criminal Procedure had to be
applied exclusively.

On .. November 1972 the applicant appealed against this decision to the
Court of Appeal. He challenged the finding of the Judges' Chamber that
Section 5 of the above Execution of Sentences Act was not applicable
to him and insisted that this section should be applied. According to
this a prisoner must be released if his detention is impossible because
of his physical state, or because of illness. He mentioned that he had
been examined by an expert on .. October 1972, who confirmed that he
suffered from a disease of his heart, and that his general condition
was reduced. The applicant then indicated that he had suffered from
three cardiac infarctions in the past and that the last of these
infarctions was the reason for his release from detention on remand in
1968. The applicant stressed that all this was part of his medical file
and was confirmed by several experts. As regards the medical
examination of .. October 1972 he observed that the examining doctor
did not even made an electrocardiograph and that, consequently, he
could not really give a diagnosis on the applicant's condition. He
concluded that it was beyond doubt that his health was in a very bad
condition, that there was an imminent danger of his suffering a fourth
infarction, and that he could not get adequate treatment in the prison
hospital.

On .. November 1972 the applicant suffered from a stroke (cerebral
apoplexy).

On .. November 1972 the Court of Appeal dismissed the applicant's
appeal. It referred to the unchanged situation as to the applicant's
danger of absconding. It also dealt with the applicant's fitness for
detention and stated that it had before it a report from the prison
hospital that the applicant on .. November suffered from a cerebral
apoplexy as a consequence of which he was partly paralysed and was
transferred to a neurological department of the University Hospital.
The Court then telephoned the head of this department, Professor R.,
who said that the stroke was slight and that the paralysis was
simulated by the applicant. The same doctor also reported that the
applicant had certainly not suffered from  any of the alleged three
heart infarctions, although it could not be excluded that he had been
near to them. The Court of Appeal, on the basis of this information,
concluded that the applicant's attitude was an attempted disguise of
a slight stroke (Tarnungsversuch eines leichten Schlaganfalls) and
that, consequently, it was superfluous to order an electrocardiograph
for his heart. The Court found that the applicant was fit for
detention; it did, however, not deal with the question whether Section
5 of the above Execution of Sentences Act was applicable to a person
remanded in custody.

On .. December 1972 the applicant again requested his release, but on
.. December 1972 the Judges' Chamber' of the Regional Court dismissed
this request. The Court mentioned the Court of Appeal's decision of ..
November 1972 in respect to the danger of flight, and to the
applicant's state of health. It stated, moreover, that the applicant's
allegations that he was paralysed and could not move his right arm and
leg so that he had to remain seated in an invalid chair, and that he
had suffered from three heart infarctions were altogether incredible.

On .. December 1972 the Supreme Court gave its final judgment reducing
the applicant's sentence to three years' imprisonment but dismissing
his plea of nullity.

It appears that, on .. August 1973, the Court of Appeal decided that
the applicant was no longer fit for detention and on .. August 1973 he
was set free.

Complaints

The applicant complained under part (a) that he had been refused
compensation for his unjustified detention on remand from .. November
1965 until .. December 1965 and .. February 1966 until .. January 1968.

He complained under part (b) about his conviction of .. April 1972 and
stated that the above criminal proceedings, although they had ended
with his acquittal, had been taken into account in the second
proceedings, and that several of his witnesses had not been heard by
the Trial Court.

Finally, the applicant complained under part (c) about his detention
on remand after his conviction which was, in his submission,
unjustified as no danger of flight existed and since he was unfit for
detention.

He alleged violations of Articles 5 and 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The Commission considered the application on 31 May 1973 and, by a
partial decision, declared certain of the applicant's complaints
inadmissible, namely those under (a) and (b) above.

The Commission found that the complaint under Article 5 (5) of the
Convention that the Austrian courts had refused to pay compensation for
his detention on remand from .. November 1965 until .. December 1965,
and from February .. 1966 until .. January 1968 was, in the
circumstances, incompatible with the provisions of the Convention
ratione materiae and should therefore be rejected in accordance with
Article 27 (2), of the Convention.

The Commission further found that in regard to the complaint under
Article 6 (1) of the Convention that the trial court in the 1972
criminal proceedings against him had taken into account, and relied
upon, criminal proceedings which had ended with his acquittal in 1969,
the applicant had failed to exhaust the domestic remedies (Article 26
of the Convention) and his complaint should therefore be rejected under
Article 27 (3), of the Convention.

Furthermore, insofar as the applicant had made various complaints
relating to his conviction and sentence and to the court proceedings
concerned, his application was manifestly ill-founded within the
meaning of Article 27, paragraph (2), of the Convention.

However, insofar as the applicant had alleged a violation of Article
5 of the Convention by reason of his detention on remand from .. April
1972 until .. December 1972, and had submitted that this detention was
unjustified as no danger of flight existed and as he was medically
unfit for detention, the Commission decided to adjourn its further
examination of the admissibility of this complaint. In the meanwhile
it gave notice of this part of the application - in accordance with
Rule 45, 3 b) of the Commission's Rules of Procedure (old version) -
to the Austrian Government and invited them to submit their written
observations on the question of admissibility. These observations have
been sent to Commission on 8 August 1973. The applicant replied on 15
September 1973.

SUBMISSIONS OF THE PARTIES

1.   The respondent Government first made submissions concerning the
facts of the case. In this respect they quoted extracts from the
decision of the Vienna Regional Court, dated .. April 1972, and the
decisions of the Vienna Court of Appeal, dated .. May and .. November
1972, relating to the applicant's continued detention on remand. The
respondent Government underlined that the courts had consistently found
that a danger of flight existed and that the applicant's state of
health, during the entire period of his detention on remand, had been
continuously considered by the courts in consultation with the medical
authorities. In addition to this the Government pointed out that there
was another criminal procedure pending against the applicant which was
still in the stage of preliminary investigations.

The Government then made submissions with regard to the admissibility
of the remaining part of the application. They maintained first that
Article 5 (3) of the Convention should not be interpreted in a way so
as to make the requirement of "reasonable time" also depend on
subjective conditions relating to the applicant's personal situation
- as, for example, in the present case his state of health. Article 5
(3) of the Convention should only be considered in relation to
objective facts directly connected with the proceedings of the case.
In this connection the Government referred to the following passage in
the European Court's judgment in the Neumeister Case:  "The Court is
likewise of the opinion that, in determining in a given case whether
or not the detention of an accused person exceeds a reasonable limit,
it is for the national judicial authorities to seek all the facts
arguing for or against the existence of a genuine requirement of public
interest justifying a departure from the rule of respect for individual
liberty". (paragraph 5 of THE LAW).

Thus, the two elements which had to be weighed under Article 5 (3) of
the Convention are the respect of the right to liberty on the one hand
and the public interest on the other. However, the right to liberty is
a constant quantity independent of personal circumstances and, in the
same way, the applicant's state of health was therefore irrelevant for
the considerations of the public interest weighing in favour of a
continuation of his detention on remand.

The Government maintained that this view was completely in accordance
with the criteria laid down in the Wemhoff, Neumeister, Stögmüller and
Matznetter Cases in regard to Article 5 (3) of the Convention. It
followed that the subjective case of a person was not relevant for an
examination of "reasonable time" if that state existed independently
of the applicant's detention, whereas it was quite relevant where his
subjective state had been caused by the detention and was therefore its
direct result.

The respondent Government finally submitted that there was no violation
of Article 3 of the Convention. The applicant had been detained in the
Vienna Prison hospital. His allegations concerning the three cardiac
infarctions were not true and the slight stroke might be considered as
having been simulated. In this respect the Government referred to Dec.
Adm. No. 1628/72 (Collection 12, p. 67) and pointed out that the
applicant had been, during the entire period of his detention on
remand, under permanent and adequate medical care.

The respondent Government concluded that, in their submission, the
remainder of the application was manifestly ill-founded and therefore
inadmissible under Article 27 (2), of the Convention.

2.   The applicant in his reply of 15 December 1973 first rejected as
being incorrect certain observations of the respondent Government
relating to the facts of his case.

He submitted, in particular, that

(a)  he had been discharged in two proceedings by the Vienna Regional
     Court and the Wiener Neustadt Regional Court;
(b)  he never used foreign identity papers, and
(c)  he had never broken a solemn undertaking.

The applicant added that his journeys abroad could not be held against
him because they had been sanctioned by the Court and he had always
returned punctually.

Similarly it was incorrect for the respondent Government to say that
the detention on remand had been upheld on account of other
proceedings. The applicant admitted that a preliminary investigation
had been instituted against him for an offence of negligent bankruptcy
and an offence under the General Social Security Act but this
indictment had not been upheld by the Court of Appeal.

In regard to his fitness for detention on remand the applicant alleged
that the observations of the respondent Government were also incorrect.
Concerning his state of health, he referred to his cardiac infarction
which had been confirmed, after several months of detention without
sufficient medical care, by a specialist at the Vienna Institute for
Forensic Medicine who had nevertheless found him to be fit for
detention. The applicant emphasised that this diagnosis had been given
without an electrocardiogram and that for this reason he had appealed
to the Court of Appeal.

Moreover, on .. November 1972 he had suffered a stroke which, according
to he medical report of the court doctor, rendered him unfit for work
(permanent disablement within the meaning of the General Social
Security Act). The applicant also queried the statement of the Austrian
Government that the Court of Appeal had telephoned the neurologist
Professor R. on .. November 1972 before taking its decision, because
it was inconceivable that a neurologist should have alleged, without
the aid of an electrocardiogram or the results of a series of other
tests which should have been performed, that he had suffered no
infarction and that the stroke had only been slight.

The applicant underlined that he received no medical treatment
whatsoever between .. November 1972 and .. January 1973. Between ..
February and .. March 1973 he had been examined by several specialists
in the neurological hospital "A.R." at his own expense. In this
hospital the following tests had been made:

(a)  a lumbar puncture
(b)  an angiocardiogram
(c)  an electroencephalogram

(d)  an aortic arch
(e)  a Roth's eye test
(f)  an eye pressure measurement
(g)  a vascular test
(h)  an isotopic analysis
(i)  a front wall and a rear wall ECG

A successful Xenox (obstruction of the rear carotic artery) which had
been made before had shown insufficient circulation to the left brain,
which had caused necrosis of the left brain cells.

According to the applicant the results of these tests showed that there
could have been no question of any simulation on his part. Moreover,
due to the lack of treatment his illness had reached such a degree of
severity that the brain cells have been affected in many ways.

The applicant submitted that, as a result of the insufficient medical
care during his detention, he suffered two further strokes on .. April
1973 and .. May 1973 which led to a paralysis of the right eye muscle
and a neurogenic bladder disorder. Accordingly, on .. August 1973 the
Court of Appeal had confirmed his unfitness for detention and ordered
his release.

The applicant submitted that, at the time of this decision, his health
and physical well-being had suffered such harm that there was now no
longer any hope of his recovering his capacity for work. In his opinion
this state of affairs had been brought about by his unjustified arrest
on .. April 1972.

He therefore appealed to the Commission to declare his application
admissible.

THE LAW

1.   The remainder of this application concerns the applicant's
complaints relating to his detention from .. April 1972 to December
1972 with regard to which he had submitted that it was unjustified as
no danger of flight existed and as he was medically unfit for any
detention.

The Commission has considered this complaint first under 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". In this connection it noted that the
period, which is the other subject of the applicant's complaint, began
with his arrest on .. April 1972 being also the date of his conviction
at first instance by the Regional Criminal Court in Vienna, and ended
on .. December 1972 which was the date of the final decision by the
Supreme Court.

The European Court of Human Rights and Fundamental Freedoms decided in
the "Wemhoff" Case that the period to be taken into consideration for
the assessment wether or not the applicant's detention violated the
provisions of Article 5 (3) (Art. 5-3) of the Convention started with
the accused person's arrest and ended with his conviction at first
instance.

In the European Court's reasoning it was clear that after that date he
was no longer detained in accordance with Article 5 (1) (c)
(Art. 5-1-c) of the Convention, namely for the purpose of bringing him
before the competent legal authority on reasonable suspicion of having
committed an offence, but was a person detained "after conviction by
a competent court" within the meaning of Article 5 (1) (a) (Art. 5-1-a)
of the Convention (European Court of Human Rights "Wemhoff" Case,
judgment of 27 June 1968, paragraph 9 of THE LAW).

It is true that, in the Ringeisen Case, the Commission questioned the
general applicability of the above jurisprudence in the special
circumstances of that case. It submitted the issue to the European
Court which, in that case, did not consider it necessary to pronounce
itself on that point as it found, for other reasons, that the
applicant's detention was covered by Article 5 (3) (Art. 5-3) of the
Convention (see Commission's Report of 19 March 1970, p. 39 and
European Court of Human Rights "Ringeisen" judgment of 16 July 1971,
paragraph 109). However, in a number of cases subsequently considered
by the Commission the above jurisprudence of the European Court in the
"Wemhoff" Case has been followed (see Commission's Report of 6 October
1970 in the Jentzsch Case, p. 12, with further references) and there
is nothing in the present case which might lead the Commission to take
a different course.

The present applicant's detention from .. April 1972 to .. December
1972 was not therefore detention in accordance with the provisions of
Article 5 (1) (c) (Art. 5-1-c) of the Convention with the consequence
that Article 5 (3) (Art. 5-3) of the Convention is not applicable to
that period of detention. It follows that the applicant's complaints,
if considered under Article 5 (3) (Art. 5-3) of the Convention, are
incompatible with the provisions of the Convention ratione materiae and
must be rejected in accordance with Article 27 (2) (Art. 27-2), of the
Convention.

2.   The Commission has further considered the applicant's above
complaint under Article 3 (Art. 3) of the Convention according to which
no one "shall be subjected to torture or to inhuman or degrading
treatment or punishment".

In this connection the Commission noted that, during the entire period
of detention which is under consideration in this case, the applicant
has been under close medical supervision at the prison hospital where
he was detained although it appears that no electrocardiogram
examination was made. Furthermore, his state of health has been
examined, with a view to his fitness for detention, first by the
Institute for Forensic Medicine and subsequently, after he had suffered
a stroke, by Professor R. of the Neurological Department of the Vienna
University Hospital. As a result of these medical examinations it was
found that his illness was not such as to render him unfit for
detention provided that the supervision of his state of health
continued. On his side, the applicant has not shown that the
supervision of his state of health has not been duly carried out.

In these circumstances the Commission finds that the applicant's
treatment during his detention, particularly having regard to the
constant supervision of his health, did not in any way constitute
inhuman or degrading treatment within the meaning of Article 3
(Art. 3) of the Convention. An examination of the case as it has been
submitted does not therefore disclose any appearance of a violation of
the Convention and particularly of the above Article.

It follows that the applicant's complaints, if considered under Article
3 (Art. 3) of the Convention, are manifestly ill-founded and must be
rejected in accordance with Article 27 (2) (Art. 27-2), of the
Convention.

For these reasons, the Commission DECLARES THE REMAINDER OF THIS
APPLICATION INADMISSIBLE.