# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة الأوروبية لحقوق الإنسان > Decisions of The European Court of Human Rights >  M.R. v. AUSTRIA - 2614/65 [1968] ECHR 7 (18 July 1968)

## هيثم الفقى

[align=left]THE FACTS

A. Whereas the facts presented by the parties and apparently not in
dispute between them may be summarised as follows:

The applicant is an Austrian citizen, born in 1921 in Hungary and
resident in Vienna. He was an insurance agent and also concerned
himself with dealings in real property.

I. Proceedings before the Constitutional Court

In 1961 the applicant intended to purchase certain property in Upper
Austria from a couple named X. His plan was to divide this land up in
plots and resell it. In accordance with this plan the applicant, on
21st August, 1961, entered into a contract with X. relating to the sale
of Plot Registry No. 704 at Neubau, and on 6th February, 1962, another
contract was signed by them relating to Plot Registry Nos. 57 and 222
at Annaberg. The present application is concerned with Plots Nos. 57
and 222 at Annaberg only.

However, this contract between the applicant and Mr. and Mrs. X. never
took effect. Under Article 1 of the Act relating to the Approval of
Transactions concerning Agricultural and Forestry Land (Gesetz &Atilde;¼ber die
Genehmigung des Land- und Forstwirtschaftlichen Grundverkehrs) of Upper
Austria, dated 26th May, 1954, the transfer of ownership by contract
inter vivos with regard to plots of land destined as a whole or in part
for forestry or agricultural use is subject to approval by a Real
Property Sales Commission (Grundverkehrskommission) set up for this
purpose. In pursuance of this provision the applicant, on 30th March,
1962, submitted the contract of 6th February, 1962, to the District
Real Property Sales Commission (Bezirksverkehrskommission) at Efording
for its approval. This was refused by decision of 28th September, 1962,
on the grounds that the property was acquired for speculation and would
be diverted from its established use as farmland. The applicant
appealed (Berufung) against this decision to the Regional Real Property
Sales Commission (Landesgrundverkehrskommission) at Linz. The
Commission held a non-public sitting on 12th February, 1963, and
decided personally to inspect the premises. This was accomplished on
2nd April, 1963. Subsequently, on 13 May, 1963, the Regional Commission
dismissed the appeal in a non-public session on the ground that the
conveyance contravened Article 4, paragraph (1), of the Upper Austrian
Act relating to the Approval of Transactions concerning Agricultural
and Forestry Land, which provides in substance that such conveyances
must correspond to the public interest in creating and maintaining
areas reserved for agriculture and forestry, in maintaining and
strengthening the efficiency of persons engaged in agriculture and
similar purposes. At this session certain members of the Commission who
had not been present at the previous sessions took part in the
deliberation and decision. Upon a constitutional appeal
(Verfassungsbeschwerde) lodged by the applicant with the Constitutional
Court (Verfasssungsgerichtshof) the decision of the Regional Commission
was set aside for the above reason, on 20th June, 1964.

On 3rd February, 1965, the Regional Property Sales Commission at Linz
once more dismissed the applicant's case. By the same decision the
Commission rejected the applicant's challenge of several of its members
on grounds of bias. The applicant subsequently again lodged with the
Federal Constitutional Court a constitutional appeal against this
decision. He alleged again that his constitutional rights were violated
in that the Regional Commission's decision was taken by biased members
of the Commission and, having regard to the substantive issues of the
case, was arbitrary. He stated that the bias of the Commission members
consisted in the fact that the Presiding Member had appeared as
representative of the Commission in earlier proceedings before the
Constitutional Court, that another member had been heard as a witness
in these proceedings, that another member had made a statement to the
effect that the contract could not be approved because another contract
relating to the same premises had already been approved, that yet
another member had made a statement as leading member of the Chamber
of Agriculture (Landwirtschaftskammer) for Upper Austria to the effect
that the contract should not be approved and, finally, that two members
had participated in the previous decision of the Regional Commission
rejecting his application for approval of the contract. The applicant
further alleged that the same members who had decided his case on 13th
May, 1963, decided it again on 3rd February, 1965, and this constituted
a violation of his right to a trial by a tribunal established by law
(gesetzm&Atilde;¤ssiger Richter) as had been held by the Constitutional Court
in its previous decision of 20th June, 1964.

The Constitutional Court, on 27th September, 1965, dismissed the appeal
on the ground that, assuming that certain members of the Regional
Commission had in fact been biased, the applicant had no right to
challenge these members because a board does not lose its competence
to take a decision even where several of its members are biased. The
Court further held that no question as to the proper establishment of
the Commission arose as it had given a new decision on 3rd February,
1965, and had not simply continued the previous proceedings and
further, that the decision was not arbitrary.

II. Criminal proceedings

1. Proceedings for fraud etc. (19 Vr 394/63)

In the meanwhile while the proceedings before the Real Property Sales
Commission were pending, the applicant had started to divide up the
land which he considered that he had acquired from X. and to sell
separate plots to various buyers.

However, on 13th February, 1063, Mr. and Mrs. X. laid charged against
him with the Public Prosecutor's Office (Staatsanwaltschaft) at Linz.
They informed the Office that the applicant had fraudulently converted
to his own use the property owned by them in that he had inscribed the
priority ranking (Rangvermerkung), and the registration (Eintragung),
of various mortgages in the Land Registry (Grundbuch) relating to Plots
Registry Nos. 52 and 222 at Annaberg. Subsequently, further charges
were laid with the Public Prosecutor's Office at Linz on the ground
that the applicant had made with a number of proposed purchasers
contracts for the sale of real property which were not capable of being
put into effect.[/align]

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## هيثم الفقى

[align=left]
After charges of fraud had also been laid against the applicant by
several buyers of plots, the investigating judge (Untersuchungsrichter)
at Linz, on 30th July, 1963, issued a warrant for his arrest, in
accordance with Article 175, paragraph (1), sub-paragraph 4, of the
Code of Criminal Procedure (Strafprozessordnung) under which a warrant
of arrest may be issued where there are special reasons to fear that
the accused will commit further offenses. In the present case the
investigating judge found that this condition was fulfilled owing to
the fact that the applicant had continued to offer plots  of land for
sale although he knew that the Real Property Sales Commission had
refused to approve the contract of 6th February, 1962, between himself
and Mr. and Mrs. X.

On 5th August, 1963,  the applicant was arrested at Linz and remanded
in custody in accordance with Article 175, paragraph (1), sub-paragraph
4, and 180, paragraph (1), of the Code of Criminal Procedure. The order
remanding him in custody was later extended to cover the ground
mentioned in sub-paragraph 3 of paragraph (1) of Article 175, namely
that there was also the danger of the applicant's suppressing evidence.

The applicant made an application for release pending trial
(Haftbeschwerde) which was dismissed by the Judges' Chamber of the
Regional Court (Ratskammer des Landesgerichts) of Linz on 4th
September, 1963. His appeal to the Court of Appeal (Oberlandesgericht)
at Linz was rejected on 23rd September, 1963. Both courts considered
that the grounds for the applicant's detention on remand continued to
obtain.

The applicant made a further application for release pending trial to
the investigating judge which was refused on 7th November, 1963, and
his appeal to the Judges' Chamber of the Regional Court of Linz was
rejected on 19th November, 1963. The applicant then lodged with the
Court of Appeal at Linz a further appeal against the decision of the
Judges' Chamber and at the same time submitted evidence to the effect
that he had taken measures for guaranteeing any claims for the
restitution to the buyers concerned of their purchase monies. In fact,
the applicant had inscribed the priority ranking of a mortgage on
property owned by him at St. Peter in the Land Registry and this entry
should be effective until 4th October, 1964. On 19th December, 1963,
the Linz Court of Appeal decided that the applicant should be released
from detention on giving his solemn undertaking in accordance with
Article 191 of the Code of Criminal Procedure. This provision states
that, where an accused is released from detention on remand, the
investigating judge may require him to undertake not to leave his place
of residence without authorization before the final termination of the
proceedings against him, nor to conceal himself nor to do anything
which might impair the investigation of the case.

The applicant was accordingly released on 23rd December, 1963, after
having made a solemn undertaking in accordance with the above
provision.

In the meanwhile, further buyers of plots had laid charges against the
applicant and, during 1964 and early 1965, the investigations were
continued. In August 1964 the applicant also took proceedings with a
view to transferring his case to the jurisdiction of another court but
without success.

By indictment of 13th April, 1965, the Public Prosecutor's Office at
Linz charged the applicant as follows:

I. having falsely pretended, between 3rd November, 1958, and 5th April,
1963, to be an honest real estate seller, borrower and agent with a
view to induce

A. 78 persons to acts detrimental to them, namely to make payments of
some 1.4 million Schillings, and
B. 2 other persons, i.e.
   1. A.
   2. B. to grant loans in a total amount of AS 89,000.-  and

II. having misused the power delegated to him by a contract to dispose
of other people's property or engage a third party, by way of misusing,
with intent of profit, the authenticated power of attorney delegated
to him by Mr. and Mrs. X. on 9th August, 1962;  and with having thereby
caused damage to Mr. and Mrs. X, viz.

1. on 4th October, 1962, by having inscribed a priority ranking for
mortgage of AS 600,000.- and on 28th December, 1962, by registration
of a mortgage in respect of a loan of AS 600,000.-;

2. on 5th December, 1962, by registration of a mortgage of AS
5000,000.-;

3. on 14th May, 1963, by having inscribed a priority ranking for a
mortgage of another AS 500,000.- on the real estate owned by Mr. and
Mrs. X, as recorded under Nos. 57 and 222 in the land register of
Annaberg;

4. by concluding a lease contract qualified for registration concerning
these real properties in favour of Mrs. C., his common-law wife
(Lebensgef&#195;¤hrtin);

5. on 23rd January, 1963, by concluding a lease contract qualified for
registration in respect of the real properties owned by Mr. and Mrs.
X. in favour of the couple D.

The applicant was accordingly charged with fraud (Betrug) under
Articles 197, 200, 201 d,  203, and fraudulent conversion (Untreue)
under Article 205 c of the Criminal Code.

When submitting the indictment the said Public Prosecutor's Office also
requested that the applicant should again be remanded in custody on the
grounds laid down in Article 175, paragraph (1), sub-paragraphs 2 and
4, 180, paragraph (1), of the Code of Criminal Procedure. This request
was based on the fact that the priority ranking of a mortgage in the
amount of two million Schillings, by which the applicant had previously
guaranteed his creditors' claims and which had been decisive for his
release on 23rd December, 1963, had expired on  4th October, 1964, and
he had failed to cause a new such ranking to be entered in the Land
Registry relating to his property at St. Peter. Furthermore, enquiries
made with credit institutions at Linz had revealed that the applicant
kept concealed considerable sums which he might use to abscond in view
of the indictment against him. Finally, if left at large, the applicant
would have an opportunity to allow the damage to become irrevocable and
to commit further offenses at an time.

When making this request for his detention, the applicant had already
been in custody since 15th March, 1965, with respect to the proceedings
against him for fraudulent bankruptcy (see below). On 12th May, 1965,
the investigating judge at Linz, pursuant to the prosecution's request,
made an order for the applicant's detention on remand with respect to
the proceedings against him for fraud and fraudulent conversion.

On 19th May, 1965, the Linz Court of Appeal took a decision rejecting
the applicant's appeal (Einspruch) against the indictment. In this
decision the Court of Appeal also decided that his detention on remand
should continue. A further appeal against this decision was withdrawn
by the applicant on 8th June, 1965.

In the meanwhile, he had made another application to the courts that
his case should be referred to a court outside the jurisdiction of the
Linz Court of Appeal. This application, submitted to the Supreme Court
(Oberster Gerichtshof) on 11th June, 1965, was refused on 8th July,
1965.

Next, the Court of Appeal at Linz was called upon to take a decision
as to the applicant's challenge of all the judges of the Linz Regional
Court. Before taking a decision the Court of Appeal made an order to
the effect that the applicant should set out in clear terms the grounds
of his challenge. In compliance with this order the authorities, on 6th
September, 1965, took a written statement from the applicant by which
he withdrew the said challenges except as regards the one District
Court Judge (Bezirksrichter), Dr. F. In this respect, his challenge was
rejected by decision of the President of the Linz Regional Court, dated
13th September, 1965.

On 3rd November, 1965, the Linz Regional Court fixed the date of the
applicant's trial for 13th December, 1965. The applicant refused to
acknowledge this date and, at the same time, made a new request for a
change of venue. He also requested that the trial should be cancelled.
By three further petitions and one submission to the Regional Court
entitled "complaint", all dated 4th December, 1965, the applicant
repeated his above requests alleging generally that the proceedings
opened against him were unlawful. On 6th December, 1965, the Regional
Court declared that his request for change of venue would not be dealt
with as the Supreme Court had already twice rejected his similar
requests. The applicant was further informed that under the applicable
law it was not possible to cancel the trial.

Consequently, the trial opened before the Linz Regional Court on 13th
December, 1965. It continued until 16th December, 1965, when the
hearing was adjourned by reason of applications made by both the
prosecuting authority and the counsel for the defence to the effect
that further evidence should be obtained. The Court also decided that
the trial should continue on 13th January, 1966.[/align]

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## هيثم الفقى

[align=left]During the period from 16th December, 1965, to 13th January, 1966, the
applicant made another application for release pending trial which was
refused by the Linz Regional Court on 28th December, 1965. He also
requested once more that his case should be transferred to the
jurisdiction of another court and submitted a plea of nullity for
safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes)
by which he accused public prosecutors and judges of having violated
the law. He was informed on 10th January, 1966, that his plea of
nullity would be brought to the attention of the Attorney-General's
Office (Generalprokuratur) when final judgment had been passed against
him.

The trial continued on 13th January, 1966, and was terminated on 14th
January. On that day he was convicted for fraud with respect to counts
I A (78 purchasers) and I B 1 (A.) of the indictment and sentenced to
three years' severe imprisonment (hartes Lager) once every three
months. He was acquitted of the other charges.

The Court also decided that the applicant should be released from
detention on a solemn undertaking in accordance with Article 191 of the
Code of Criminal Procedure. The Office of the Public Prosecutor lodged
an appeal (Beschwerde) against this decision which was allowed by
decision of the Linz Court of Appeal, dated 2nd March, 1966. The Court
decided that the grounds for the applicant's detention on remand
continued to obtain (danger of his absconding and committing further
offenses). It appears that, under the applicable Austrian law, this
decision was taken after hearing the prosecuting authority but in the
absence of the applicant or his lawyer.

Both the Public Prosecutor's Office and the applicant, on 25th
February, and 3rd March, 1966 respectively, lodged with the Supreme
Court a plea of nullity (Nichtigkeitsbeschwerde) against the conviction
and appeal (Berufung) against the sentence.

The case files were transmitted to the Supreme Court in Vienna on 9th
March, 1966, but were subsequently sent back to Linz for the Regional
Court to deal with an application for release pending appeal which the
applicant, in the meanwhile, had lodged. However, this application was
withdrawn by the applicant on 30th June, 1966.

On 27th July, 1966, the Supreme Court took a decision with regard to
the pleas of nullity and appeals mentioned above. It decided that the
Regional Court's decision should be set aside as regards the conviction
for fraud under count I B (A.) and acquittal on the charge of
fraudulent conversion, under count II (Mr. and Mrs. X.) of the
indictment, as well as regards the sentence. However, the judgment
should stand as regards the acquittal on the charges of fraud under
count I B (B.) and the conviction for fraud under count I A (78
purchasers) of the indictment. The case was accordingly sent back to
the Linz Regional Court for further hearing and decision.

On the application of the prosecuting authority the Linz Regional Court
decided on 14th September, 1966, that the proceedings against the
applicant as regards the charge of fraud under count I B (A.) and the
charge of fraudulent conversion under count II of the indictment should
be discontinued. Consequently, the only charge remaining was count I
A (78 purchasers) of the indictment for which the applicant had been
convicted but not sentenced.

In the meanwhile, the applicant had lodged a further petition for his
release pending appeal which was refused by the Regional Court of Linz
on 21st September, 1966. On appeal to the Linz Court of Appeal this
decision was confirmed on 28th September, 1966.

The applicant also made various petitions relating to the manner in
which the further hearing of his case which had been fixed for 18th
October, 1966, should be conducted. These petitions were rejected on
the ground that they could not properly be dealt with under the rules
of procedure.

On 14th October, 1966, the applicant requested that the hearing of 18th
October, should be adjourned to a later date. This request was refused
and, on 18th October, 1966, the Linz Regional Court fixed the
applicant's sentence at five years' severe imprisonment with the
additional penalty of fasting and "sleeping hard" once every three
months. The Court further decided that the period from 5th August to
23rd December, 1963, and from 15th March, 1965, to 18th October, 1966,
which the applicant had spent in detention on remand should be credited
towards his sentence.

On 3rd November, 1966, the applicant lodged with the Supreme Court a
plea of nullity and an appeal against this decision of the Regional
Court.

Subsequently, further applications for release from detention were
lodged by the applicant on 21st, 27th and 30th January, 1967. The
Regional Court of Linz refused these applications on 15th February,
1967. The applicant appealed against this decision to the Linz Court
of Appeal which decided on 15th March, 1967, that the appeal should be
allowed. The Court ordered that the applicant should be released on a
solemn undertaking in accordance with Article 191 of the Code of
Criminal Procedure on the ground that, having been kept in detention
on remand for two-and-a-half years, it could no longer be assumed that
he would abscond in order to avoid prosecution. The applicant was
released accordingly on 20th March, 1967.

It appears that, on 15th February, 1968, the Supreme Court heard the
applicant's plea of nullity and appeal. It dismissed the plea of
nullity, but reduced the sentence to two years' and nine months' severe
imprisonment.

2. Proceedings for fraudulent bankruptcy (19 Vr 1566/64)

In 1964, while the charges under the proceedings set out above were
still being investigated, the applicant was suspected of having
committed further offenses with regard to his obligations towards his
creditors.

It appears that the purchasers of plots had instituted civil
proceedings against the applicant to recover their purchase monies
after it had been clear that he was not able to transfer to them the
titles of various plots. By the end of April 1964 a large number of
them were in possession of final judgments on the basis of which they
were entitled to execution against the applicant. The applicant was
accused of having prevented some of these creditors from obtaining
satisfaction of the sums owing to them.

On the application of the Public Prosecutor's Office at Linz the
investigating judge decided on 31st August, 1964, that preliminary
investigations (Voruntersuchung) should be instituted against him. The
judge further decided that these charges should be dealt with
separately from the charges of fraud referred to above.[/align]

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## هيثم الفقى

[align=left] 
During the period from September 1964 to March 1965 these charges were
investigated by the police. As more and more creditors laid charges
against the applicant the preliminary investigations were extended to
these new facts.

On 15th March, 1965, the Office of the Public Prosecutor at Linz made
a request to the investigating judge that a warrant for the applicant's
arrest should be issued and his detention on remand be ordered in
accordance with the provisions of Article 175, paragraph (1),
sub-paragraphs 3 and 4, and 180, paragraph (1) of the Code of Criminal
Procedure. The investigating judge found that there existed the danger
of the applicant's committing further offenses and on the same day made
the order requested. Consequently, the applicant was arrested on 15th
March, 1965.

On 16th March, 1965, he submitted an application by which he complained
of the unlawfulness of his detention on remand and also challenged the
entire circuit of the Court of Appeal of Linz
(Oberlandesgerichtsprengel), the courts in that circuit, as well as the
Judge of the Court of Appeal, Dr. Y. The challenges were rejected by
the Supreme Court on 1st August, 1965, by the Linz Court of Appeal on
21st April, 1965, and by the President of the Linz Regional Court on
4th May, 1965, and 20th May, 1965.

On 10th and 17th May, 1965, the applicant had also repeated his
complaints that his detention on remand was unlawful. On 16th May,
1965, the Judges' Chamber of the Linz Regional Court rejected these
complaints. The applicant lodged with the Linz Court of Appeal an
appeal against this decision which was rejected on 16th June, 1965, for
the reasons stated in the Regional Court's decision of 26th May, 1965.

As was stated above under A II 1, a statement was taken from the
applicant on 6th September, 1965, in order to clarify certain
application made by him. This required further decisions to be taken
by the Linz Regional Court and the Supreme Court (see above).

On 10th November, 1965, the Judges' Chamber of the Linz Regional Court
rejected the applicant's application for release pending trial and for
joinder of the two criminal proceedings against him. On appeal to the
Linz Court of Appeal this decision was confirmed on 9th December, 1965.

A further petition for release pending trial lodged by the applicant
on 14th December, 1965, with the investigating judge was refused on
20th December, 1965, on the ground that the danger of the applicant's
committing further offenses persisted. An appeal and further appeal to
the Regional Court's Judges' Chamber and the Court of Appeal at Linz
were rejected on 29th December, 1965, and 9th February, 1966,
respectively.

On 18th February, 1966, the applicant made a new application for
release pending trial;  he also requested that his case should be
transferred to the jurisdiction of another court.

By indictment of 14th March, 1966, the applicant was charged with
having committed fraudulent bankruptcy under Article 205 a of the
Criminal Code. He made an appeal (Einspruch) against the indictment and
requested that the Supreme Court or the Vienna Court of Appeal should
give a decision on his appeal.

On 27th June, 1966, the Supreme Court rejected this request on the
ground that it had no competence to take such decision. As to his
application for a change of venue the Supreme Court decided that it
should be rejected as being ill-founded.

On 6th July, 1966, the Linz Court of Appeal confirmed the indictment.
The Court further decided that his detention on remand should continue
on the ground that the danger of his committing further offenses
persisted.

On 27th July, 1966, the Linz Regional Court and on 24th August, 1966,
the Judges' Chamber of the Regional Court rejected the applicant's
renewed applications for release pending trial.

On 15th September, 1966, the applicant again applied for his release
from detention on remand, but his application was rejected by the
investigating judge on 27th September, 1966. His appeal and further
appeal to the Regional Court and the Court of Appeal at Linz were
rejected on 27th October, 1966, and 30th November, 1966, respectively.

On 27th January, 1967, the applicant made new applications for release
pending trial and change of venue which were rejected by the Linz
Regional Court on 8th February, 1967, and by the Supreme Court on 24th
February, 1967.

As was stated above, on 20th March, 1967, the applicant was released
on a solemn undertaking.

B. Whereas in his application form, in his written submission and at
the oral hearing on 17th July, 1968, the applicant alleges violations
of:

1. Article 5, paragraph (3), in that the length of his detention on
remand was unreasonable;

2. Article 6, paragraph (1), in that he was not brought to trial within
a reasonable time;

3. Article 6, paragraph (1), in that he did not have a fair hearing
before the Constitutional Court on the question whether or not certain
members of the Regional Real Property Sales Commission at Linz had been
biased;

4. Article 5, paragraph (4), in that, by reason of the fact that the
decisions relating to detention pending trial had been taken by the
courts after hearing the prosecuting authority but in the absence of
the applicant or his lawyer, there has been no "proceedings" by which
the lawfulness of his detention was decided by a court.

Whereas the respondent Government has replied to these allegations in
its written observations of 23rd August, 1967, and at the oral hearing
on 17th July, 1968;

Whereas the arguments of the parties may be summarised as follows:

I. As regards the general objections by the respondent Government under
Article 26 of the Convention (exhaustion of domestic remedies and
observance of six months' rule), as regards B 1 and 3 above.

1. The respondent Government submitted that the applicant failed to
exhaust the remedies which are available to him under Austrian law with
regard to his complaints under Article 5, paragraph (3), of the
Convention and his complaints under Article 6, paragraph (1),
concerning the proceedings before the Constitutional Court.

(a)  Insofar as the allegations under Article 5, paragraph (3), are
concerned, the respondent Government first dealt with the period from
5th August to 23rd December, 1963. It contended that the applicant was
successful in invoking domestic remedies as he  was released from
detention in accordance with the decision of the Linz Court of Appeal,
dated 19th December, 1963. Hence, there was no reason for his complaint
in regard to that detention.

Furthermore, this detention was terminated on 23rd December, 1963, and
the application was not lodged until 3rd July, 1965. Consequently, this
part of the application was outside the six months' period as provided
for in Article  26 of the Convention.

With regard to the subsequent period of the applicant's detention on
remand the respondent Government contended that the Commission had no
competence to examine the period after 3rd July, 1965, the date on
which the application had been lodged with the Commission. It resulted
from Articles 24 and 25 of the Convention that the Commission had
competence only to consider the period which the applicant spent in
detention on remand before he lodged his application with the
Commission.

The respondent Government then dealt specifically with the complaint
in relation to the period from 15th March, 1965 to 20th March, 1967,
which the applicant spent in detention on remand during the proceedings
for fraudulent bankruptcy. It submitted that the applicant had failed
to exhaust the domestic remedies before 3rd July, 1965, the date on
which he lodged the present application with the Commission. In this
respect, the respondent Government contended that the applicant had
failed to make an appeal against the decision of the Judges' Chamber
of the Linz Regional Court, dated 26th May, 1965.

[/align]

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## هيثم الفقى

[align=left]Finally, the respondent Government dealt with the applicant's complaint
to the period from 12th May, 1965, to 20th March, 1967, which he spent
in detention on remand during the proceedings for fraud. In this
respect, it submitted that the applicant failed to avail himself of any
remedy before lodging his application on 3rd July, 1965, that is again
after the application had been lodged with the Commission. It submitted
that, in accordance with the French text of Article 26 of the
Convention "la Commission ne peut &#195;&#170;tre saisie qu'apr&#195;¨s l'&#195;©puisement des
voies de recours internes". Hence, this part of the application was
inadmissible under this provision for failure to exhaust the domestic
remedies.

It finally pointed out that, under Austrian law the rights and freedoms
set forth in the Convention had the rank of being constitutional
rights, the violation of which may be invoked before the Constitutional
Court. This the applicant had failed to do. Furthermore, the Commission
had already decided on previous occasions that the proceedings before
the Constitutional Court constituted a remedy within the meaning of
Article 26 of the Convention.

2. The applicant first submitted that the period of detention from 5th
August to 23rd December, 1963, should be taken into consideration in
spite of the fact that it was more than six months before the
application was lodged with the Commission, as in Austria the entire
period of detention was deducted from the sentence. Furthermore, this
period should also be considered when deciding the question whether or
not there existed a danger of the applicant's absconding.

The applicant further submitted that he repeatedly appealed to the
Court of Appeal against decisions refusing his release from detention
pending trial. Furthermore, the Commission should consider the facts
of a case as they present themselves at the time when its decision was
being taken, as it would be unrealistic to require a person to make a
new application with the Commission after each final decision rejecting
a request for release.

Finally, as regards the proceedings before the Constitutional Court,
the applicant submitted that it was questionable whether the
Constitutional Court could be considered as being a remedy within the
meaning of Article 26 of the Convention, as it constituted an
extraordinary remedy under Austrian law.

II. As regards the other allegations

1. As to Article 5, paragraph (3), of the Convention (right of a
detained person to trial within a reasonable time)

(a)  The respondent Government further submitted that, even assuming
the applicant had complied with the provisions of Article 26 of the
Convention, his complaints regarding the length of his detention on
remand during both criminal proceedings against him were manifestly
ill-founded. Reference was made to the arguments presented by the
Austria Government to the European Court of Human Rights in the
Neumeister Case. In particular, with regard to the present case, the
respondent Government pointed out that it was largely the fault of the
applicant himself that he had been kept in detention on remand as he
had filed numerous applications and petitions to the courts. Especially
his applications for a change of venue caused considerable delays as
on each occasion the files had to be transmitted to the Supreme Court
in Vienna for the decision by that Court. Similar delays were caused
by his challenges of judges and by more than fifty written submissions
to the President of the Linz Court of Appeal which had to be dealt with
in one way or another.

(b)  The applicant first pointed out that he had no previous
convictions. He then gave certain details of the facts which led up to
his conviction and sentence for fraud, concluding in particular that
political reasons had prompted the Real Property Sales Commissions to
refuse approval of his contract for the purchase of the property
concerned.

The applicant submitted that the actual period of his detention on
remand constituted two-and-a-half years and was, consequently,
excessive within the meaning of Article 5, paragraph (3), of the
Convention. In this connection he argued that the period after 14th
January, 1966, the date of his conviction and sentence by the Linz
Regional Court should be taken in consideration when calculating the
actual length of his detention on remand. This resulted from the
principle of presumption of innocence contained in Article 6, paragraph
(2), of the Convention read in conjunction with the requirement of
exhausting domestic remedies under Article 26. For, it followed that,
if the aforesaid presumption obtained until all domestic remedies had
been exhausted, a period up to the date of the final judgment must be
considered in order to determine whether or not the detention was
reasonable. Furthermore, when the actual length of a person's detention
on remand exceeded a certain period, this gave rise to a rebuttable
presumption that the detention was unreasonable. He submitted, that,
where an offence is punishable with imprisonment up to ten years the
detention may be considered reasonable if it lasted for six months to
a year. In the present case, where the applicant was finally sentenced
to two years and nine months' imprisonment, his detention on remand for
a period of two-and-a-half years was clearly too long. It was true
that, under the applicable provisions of the Austrian Criminal Code,
it is possible to impose sentences from five to ten years for the
offenses of which the applicant was accused. However, the Criminal Code
dates back to 1803 when it was considered that severe sentences had a
preventive effect on prospective criminals. Modern criminology had
established that this is not true. Consequently, the Austrian
Government recently had published the draft of a new Criminal Code in
which it was expressly stated that the sentences provided in  the
existing law were too severe. According to this draft law the
provisions relating to mitigation of sentence should be applied as a
general rule and, as regards cases of fraud involving sums of more than
100,000 Schillings, a sentence of one year's imprisonment constitutes
the lowest punishment.

The applicant further stated that it was not his own behaviour that
caused the delays. He considered that he was innocent and that it could
not be held against him that he tried to defend himself against the
accusations made. Besides, as he was detained during two proceedings
against him, he was obliged to make applications for his release in
regard to both proceedings.

The applicant further submitted that the reasons for his arrests and
detention on remand did not exist. In particular, there was no danger
of his committing further offenses as, by the time he was arrested for
the second time in March 1965, bankruptcy proceedings had already been
opened against him. It should not be necessary that the danger of his
committing further offenses existed with regard to any offence but
simply with regard to that offence which gave rise to his arrest and
remand in custody. It followed that in view of the bankruptcy
proceedings he had no possibility to commit any further offenses of
fraud or fraudulent bankruptcy.

2. As to Article 6, paragraph (1), of the Convention with regard to the
criminal proceedings against the applicant (right to have his case
heard within a reasonable time)[/align]

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## هيثم الفقى

[align=left](a)  The respondent Government first referred again to its legal
arguments on the interpretation of Article 6, paragraph (1), of the
Convention which it submitted in the Neumeister Case. It stressed, in
particular, that the time to be considered in connection with this
provision began when the indictment was preferred.

The respondent Government further submitted that separate handling of
the two proceedings against the applicant served to accelerate the
proceedings for fraud (19 Vr 394/63) which it considered to be the main
proceedings. In these proceedings the indictment was preferred on 15th
April, 1965, the preliminary investigation having been instituted on
16th July, 1963. Consequently, the investigations lasted for about a
year and a half only, while the proceedings themselves after the
indictment had been preferred took over two years and a half. This
delay was caused by the applicant himself who made numerous and
generally hopeless applications. In particular, the applicant himself
repeatedly requested that the trial should be cancelled or adjourned.

The respondent Government further stated that the new trial had been
immediately fixed by the Linz Regional Court after the files had been
returned to the Supreme Court following its decision of 27th July,
1966, by which certain parts of the Regional Court's judgment of 14th
January, 1966, had been set aside. Subsequently, the Public
Prosecutor's Office had requested that proceedings on certain charges
should be discontinued and this measure also served only to accelerate
the proceedings.

The respondent Government further submitted that the criminal
proceedings for fraudulent bankruptcy (19 Vr 1566/64) were dependent
on the outcome of the proceedings for fraud.

(b)  The applicant submitted that the time to be considered in
connection with Article 6, paragraph (1), of the Convention began when
the preliminary investigation was instituted against him. This
represented an important step in the proceedings by which a person was
being put on trial for having committed criminal offenses and
corresponded to the "criminal charge" in the Anglo-American law. After
preliminary investigations have been instituted it is not possible for
the prosecution simply to discontinue the proceedings, but a judicial
decision is necessary.

The applicant stated that the proceedings for fraud were unduly
prolonged in that, in one period from 13th to 16th December, 1965, all
witnesses has been heard and all applications had been dealt with. None
of the witnesses were resident outside Linz and no witness had held up
the proceedings. Furthermore, the applications made by the applicant
himself had not caused any delay. The files had always remained in Linz
and the Court of Appeal was only ten minutes' walk away from the
Regional Court.

The applicant further submitted that, as regards the proceedings for
fraudulent bankruptcy, no action had been taken so far and it was not
likely that any action would be taken.

3. As to Article 6, paragraph (1), of the Convention with regard to the
proceedings before the Constitutional Court (right to a fair hearing
before an independent and impartial tribunal)

(a)  The respondent Government submitted that Article 6, paragraph (1),
of the Convention did not guarantee a right to proceedings before a
court of law but simply laid down basic rules of procedure where
national legislation makes provisions for judicial proceedings.
Furthermore, the term "civil rights" within the meaning of the
aforesaid provision should be interpreted as simply referring to the
national legal system.

The respondent Government further submitted that the Regional Real
Property Sales Commission was organised in accordance with the
principle of collective responsibility as provided in Article 133,
paragraph (4), of the Federal Constitutional Act
(Bundesverfassungsgesetz) and was clearly an independent and impartial
authority.

However, Article 6, paragraph (1), of the Convention was not applicable
to proceedings before the Real Property Sales Commission. When
considering the question what is meant by the provision in Article 6,
paragraph (1),  relating to "the determination of civil rights and
obligations" reference must be made to the French text which reads as
follows: "contestations sur des droits et obligations de caract&#195;¨re
civil." In this context "contestations" could only relate to disputes
(Streitigkeiten) as regards matters concerning the relations between
parties who are on an equal footing but not such concerning the
subordination of persons to the state. In this connection, the
respondent Government referred to the Commission's decisions on the
admissibility of Applications Nos. 423/58 (Collection of Decisions,
Vol. 1), 1329/62 Yearbook V. p. 208), and 1931/63 (Collection of
Decisions, Vol. 15, p. 8).

The respondent Government submitted that the proceedings instituted by
the applicant before the Real Property Sales Commission were not aimed
at clarifying matters between himself and the sellers of the land in
question. Instead, the object of these proceedings was to obtain a
decision from a public authority on the question as to whether or not
the transfer of title to the property concerned was compatible with
certain public interests. The respondent Government concluded that such
proceedings do not involve the "determination of civil rights" within
the meaning of Article 6, paragraph (1), of the Convention. This
question resulted from the fact that the appeal to he Constitutional
Court constituted an extraordinary remedy under Austrian law. The
decisions of the Regional Real Property Sales Commission were final
decisions on the merits leaving only the possibility of a
constitutional appeal to the Constitutional Court by alleging the
violation of constitutional rights.

The applicant further submitted that the decisions of the Regional Real
Property Sales Commission violated Article 6, paragraph (1), of the
Convention, since it was not taken by impartial judges. Furthermore,
the decision of the Constitutional Court also violated the aforesaid
provision since this Court failed to deal with the question of bias on
the part of certain members of the Real Property Sales Commission.

The applicant finally submitted that the proceedings concerned involved
the determination of his civil rights within the meaning of Article 6,
paragraph (1), of the Convention. These proceedings dealt with the
question whether or not a legal condition which was stipulated in a
contract was fulfilled. The contract had been made between the parties
and simply required the approval of the authority concerned to the
effect that agricultural concerns would not be interfered with.

4. As to Article 5, paragraph (4), of the Convention in regard to the
proceedings concerning application for release pending trial (right of
a detained person to take proceedings for a decision by  a court on the
lawfulness of his detention)

(a)  During the oral hearing before the Commission the applicant also
made complaints in regard to the procedure followed in deciding on
application for release pending trial. He alleged that Article 5,
paragraph (4), of the Convention was violated by the fact that the
prosecuting authority was heard by the courts but neither he nor his
lawyer were allowed to be present when the court took a decision on the
lawfulness of his detention on remand. Consequently there were no
"proceedings" within the meaning of the said provision and the
principle of "equality of arms" was violated, in particular, where the
order for the applicant's release was set aside on appeal by the Public
Prosecutor's Office.[/align]

----------


## هيثم الفقى

[align=left](b)  The respondent Government first referred to the judgment of the
European Court of Human Rights in the Neumeister Case. It also
submitted that, insofar as the applicant had not previously included
his point in his application, it should not now be dealt with by the
Commission.

THE LAW

A. As regards the general objections made by the respondent Government
under Article 26 (Art. 26) of the Convention in relation to the
applicant's complaints concerning the length of his detention on remand
(Article 5, paragraph (3) (Art. 5-3), of the Convention) and the
proceedings before the Constitutional Court (Article 6, paragraph (1)
(Art. 6-1), of the Convention);

Whereas Article 26 (Art. 26) of the Convention provides:

"The Commission may only deal with a matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken".

Whereas the respondent Government has submitted that, with regard to
the applicant's complaints concerning the length of his detention on
remand both during the proceedings against him for fraud and for
fraudulent bankruptcy, the Commission had no competence under Articles
24 and 25 (Art. 24, 25) of the Convention to examine the period of his
detention on remand after 3rd July, 1965, the date on which he lodged
his application with the Commission; whereas the respondent Government
has also contended that the applicant has failed to exhaust, prior to
lodging his application with the Commission, the remedies available to
him under Austrian law;

Whereas, in regard to the period from 5th August to 23rd December,
1963, the respondent Government further submitted that the applicant
had, in fact, been released on giving a solemn undertaking and had,
therefore, obtained his rights by invoking national remedies; whereas,
furthermore, he had only lodged his application with the Commission on
3rd July, 1965, that is more than six months after 19th December, 1963,
the date on which the final decision in this respect was given by the
Linz Court of Appeal; whereas consequently, this part of the
application should be declared inadmissible under Article 26 (Art. 26)
of the Convention;

Whereas in respect of the above submissions, the Commission first had
regard to the judgment given by the European Court of Human Rights in
the "Neumeister" case on 27th June, 1968; whereas the Court stated
that, where an applicant was detained during two separate periods, one
of which was outside the six months time-limit laid down in Article 26
(Art. 26) of the Convention, such earlier period of detention should
nevertheless be taken into consideration in assessing the
reasonableness of his later detention; whereas the Court has further
stated that, insofar as the applicant complained of his detention on
remand, he complained of a continuing situation, and that it would be
"excessively formalistic", and also conducive to paralysing the
Commission's and the Court's work, to demand that an applicant
denouncing such a situation should file a new application with the
Commission after each final decision rejecting a request for release.

Whereas the Commission accordingly finds that, while it would be barred
by the six months' rule laid down in Article 26 (Art. 26) of the
Convention from considering as a separate complaint the first period
of detention on remand (5th August to 23rd December, 1963), it may
consider the periods subsequent to the date of the application's
introduction and may also take the first period into account in forming
an opinion on the reasonableness of the applicant's later detention;

Whereas, as regards the question of exhaustion of domestic remedies,
the Commission had regard to the text of Article 26 (Art. 26) of the
Convention as set out above; whereas it observes that there exists a
divergence in the English and French text; whereas, according not the
English text, the Commission "may only deal with a matter after all
domestic remedies have been exhausted ..."; whereas the French text
states that the Commission "ne peut &#195;&#170;tre saisie qu'apr&#195;¨s l'&#195;©puisement
des voies de recours internes ..."; whereas the argument of the
respondent Government that the applicant had failed to exhaust the
domestic remedies before lodging his application with the Commission,
is obviously based on the French text;

Whereas the rule requiring the exhaustion of domestic remedies before
making an international application is based on the principle that the
respondent State should first have had an opportunity to redress the
alleged grievance by its own means within the framework of its own
domestic legal system (cf. I.C.J., Interhandel Case, Reports 1959, p.
27); whereas the purpose of the aforesaid rule is clearly accomplished
where the international tribunal is seized of a complaint by an
paragraph whose proceedings before the domestic courts terminate in a
reasonable time thereafter with a final decision by the competent
court;

Whereas, further, it is clear that such final decision must have been
given at the latest when the international authority comes to deal
with, namely to decide upon, the application; whereas, consequently,
the Commission finds that the English text of Article 26 (Art. 26)
expresses more accurately the principle envisaged by the rule requiring
exhaustion of domestic remedies;

Whereas, when examining the application's detention on remand from 12th
May, 1965, to 20th March, 1967, during the proceedings against him for
fraud (19 Vr 394/63) in the light of the above finding, the Commission
observes that, on 19th May, 1965, the Linz Court of Appeal decided,
inter alia, that the detention on remand should continue;

Whereas similar decisions were given by the Court of Appeal at Linz on
2nd March, 1966, and 28th September, 1966;

Whereas, similarly, with regard to his detention on remand from 15th
March, 1965, to 20th March, 1967, during the proceedings against him
for fraudulent bankruptcy (19 Vr 1566/64), the Commission observes that
the applicant made an appeal to the Linz Court of Appeal against the
decision of the Judges' Chamber of the Regional Court at Linz, dated
26th May, 1965; whereas on 16th June, 1965, the Court of Appeal at Linz
rejected the appeal; whereas corresponding decisions were given by the
said Court of Appeal on 9th December, 1965, 9th February, 1966, 6th
July, 1966, and 30th November, 1966;

Whereas, consequently, both before and after the applicant had lodged
the present application with the Commission, the Court of Appeal, which
is the highest judicial authority a regards applications for release
pending trial, had taken decisions to the effect that the applicant's
detention on remand should continue;

Whereas, therefore, the Commission finds that, as regards his
complaints under Article 5, paragraph (3) (Art. 5-3), of the Convention
relating to the continuing situation of his detention on remand, the
applicant has exhausted the domestic remedies within the meaning of
Article 26 (Art. 26) of the Convention;

Whereas the general objections of the respondent Government have also
been made as to the effect of Article 26 (Art. 26) of the Convention
on the applicant's complaints under Article 6, paragraph (1)
(Art. 6-1), concerning the proceedings before the Constitutional Court;

Whereas, in this respect, the respondent Government submitted that the
applicant failed to allege before the Constitutional Court a violation
of the right guaranteed in Article 6, paragraph (1) (Art. 6-1), of the
Convention, which, under Austrian law, are of the same authority as the
provisions of the Constitution; whereas the applicant alleged that, in
view of the fact that a constitutional appeal to the Constitutional
Court constituted an extraordinary remedy, he was denied access to a
tribunal as guaranteed by the aforesaid provision;

Whereas the question whether or not a domestic remedies must be
exhausted before the Commission may deal with a case is to be
determined according to the generally recognised principles of
international law; whereas this means that, if remedies which seem
effective and sufficient are open to an individual within the legal
system of the responsible state, he must use and exhaust such remedies
in the normal way;

Whereas, indeed, the Commission has consistently held that the mere
fact that the applicant has, in pursuance of Article 26 (Art. 26),
submitted his case to the various competent courts does not constitute
compliance with this rule, but that it is also required that any
complaint made before the Commission and relating to lower courts or
authorities should have been substantially raised before the competent
higher court or authority (see decisions No. 263/57 - Yearbook I, p.
147,  788/60 - ibid. IV, p. 116 and 1103/61 - ibid. V, p. 168);

Whereas, furthermore, the Commission has also held on previous occasion
that, under Article 26 (Art. 26) of the Convention, the applicant might
be required to pursue the remedies available for an alleged breach of
his human and constitutional rights by means of a direct appeal to the
Constitutional Court (see final decision No. 2854/66, dated 18th
December, 1967);

Whereas, however, in its decision on the admissibility of Application
No. 712/50 (Yearbook IV, pages 384, 400), the Commission referred to
the jurisprudence of various international judicial organs, including
the Permanent Court of International Justice; whereas the Commission
has stated that remedies which do not offer a possibility of redressing
the alleged damage cannot be regarded as effective or sufficient and
there is, therefore, no need for them to be exhausted according to the
generally recognised principles of international law;

Whereas the Commission had regard to the recent jurisprudence of the
Austrian Constitutional Court with regard to that Court's
interpretation of Article 6, paragraph (1) (Art. 6-1), of the
Convention (see Application No. 2076/63 - Collection of Decisions, Vol.
23, p. 74); whereas in its decision of 14th October, 1965, the
Constitutional Court held that:[/align]

----------


## هيثم الفقى

[align=left] 

-  Article 6, paragraph (1) (Art. 6-1), did not require that the
decision of first instance was given by a court;  it was sufficient
that this decision, where taken by an administrative authority, was
subject to review by a court;

-  It was not contrary to Article 6, paragraph (1) (Art. 6-1), that the
Constitutional Court was competent only to confirm or to quash (nur
kassatorisch entscheiden) the administrative decision under review;
for, where the decision was quashed, the administrative authorities
were obliged to follow the Court's interpretation of the law;

-  the Constitutional Court was not bound by the findings of the
administrative authorities as to the facts.

Whereas it emerges from that decision that the Constitutional Court
considered itself as being the proper tribunal having competence to
review decisions taken by administrative authorities; whereas, under
Austrian law, there is no possibility of appeal against decisions in
the present case, even if the applicant had invoked Article 6,
paragraph (1) (Art. 6-1), by alleging that he had been denied access
to a tribunal, he would not have been heard on this submission;
whereas, therefore, he did not have an effective remedy with regard to
his aforesaid complaint;

Whereas the applicant further complained in this connection that the
Constitutional Court had failed to deal with his allegations of bias
of certain members of the Regional Real Property Sales Commission;

Whereas, here again, the respondent Government apparently contends that
the applicant should have invoked before the Constitutional Court
Article 6, paragraph (1) (Art. 6-1), of the Convention;

Whereas, in this respect, the Commission observes that the applicant
has, in fact, invoked before the Constitutional Court Article 83,
paragraph (2), of the Federal Constitutional Act which provides that
nobody shall be deprived of a hearing by the judge established by law
("Niemand darf seinem gesetzlichen Richter entzogen werden");

Whereas, therefore, the applicant had in substance brought before the
Constitutional Court the issues under Article 6, paragraph (1), of the
Convention relating to the composition of the Regional Real Property
Sales Commission; whereas the Constitutional Court has refused, on
formal legal grounds, to deal with this question; whereas,
consequently, the applicant has exhausted all remedies available to him
under Austrian law according to the generally recognised principles of
international law;

Whereas the respondent Government further maintained that the applicant
failed to comply with the provisions of Article 26 (Art. 26) of the
Convention in that the remedies in regard to his complaints under
Article 6, paragraph (1) (Art. 6-1), of the Convention to the
composition of the Regional Real Property Sales Commission had not yet
been exhausted at the time when he lodged his application with the
Commission; whereas the respondent Government pointed out that the
decision of the Constitutional Court was not given until 27th
September, 1965, while the present application was introduced on 3rd
July, 1965;

Whereas the Commission has already stated that it is sufficient for the
purposes of the rule requiring the exhaustion of domestic remedies
under Article 26 (Art. 26) of the Convention that the Commission should
have been seized of the applicant's complaint within a reasonable time
after the proceedings before the domestic courts have been terminated
with a final decision by the competent court, but before the
Commission, in  fact, deals with, that is to say decides upon, the
application;

Whereas the same reasoning applies both to complaints relating to a
continuing situation and those concerning single isolated events;

Whereas the Commission finds that a question under Article 26 (Art. 26)
of the Convention might arise where the period between the date on
which the application was lodged with the Commission, and the date on
which the final decision was taken by the domestic judicial or other
authorities was extremely long; whereas, however, in the present case,
less than three months have elapsed between the introduction of the
application and the decision of the Constitutional Court; whereas,
consequently, the Commission finds that the applicant has exhausted the
domestic remedies in accordance with Article 26 (Art. 26) of the
Convention;

Whereas, therefore, the Commission rejects the general objections to
the admissibility of the application made by the respondent Government
on the basis of Article 26 (Art. 26) of the Convention;

B. As regards the alleged violations of Article 5, paragraph (3) and
Article 6, paragraph (1) (Art. 5-3, 6-1), of the Convention relating
to the length of the applicant's detention on remand and the length of
the criminal proceedings against him;

Whereas Article 5, paragraph (3) (Art. 5-3), of the Convention provides
as follows: "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. Release may be conditioned by guarantees to appear for trial";
and whereas Article 6, paragraph (1) (Art. 6-1), of the Convention
provides: "In the determination of .... any criminal charge against
him, everyone is entitled to a ..... hearing within a reasonable time
by (a) .... tribunal ...;"

Whereas, first, the applicant alleged that his detention pending trial
for a period of over two years violated Article 5, paragraph (3)
(Art. 5-3), of the Convention; whereas the respondent Government has
submitted in particular that, by reason of his numerous and to some
extent hopeless applications and petitions the applicant himself had
caused the delays concerned, and that therefore the application was in
this respect manifestly ill-founded within the meaning of Article 27,
paragraph 2 (Art. 27-2), of the Convention;

Whereas, secondly, the applicant alleged that the failure to bring him
to trial on the charge of fraudulent bankruptcy and the length of the
proceedings against him for fraud deprived him of a hearing in these
cases within a reasonable time in accordance with Article 6, paragraph
(1) (Art. 6-1), of the Convention; whereas the respondent Government
has submitted that in view of the complexity of the cases concerned,
of the dependence of the proceedings for fraud on the outcome of the
proceedings for fraudulent bankruptcy, and of the fact that the
applicant's case was carried out with the greatest possible expedition,
the periods concerned were not excessive and unreasonable and that this
part of the application was also manifestly ill-founded within the
meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas, when deciding upon the admissibility of the present
application, the Commission had regard in particular to the judgments
of 27th June, 1967, of the European Court of Human Rights in the
"Neumeister" and "Wemhoff" cases; whereas, in regard to the allegations
under Article 5, paragraph (3) (Art. 5-3), the Court pointed out that
it was essential on the basis of the reasons given by the national
authorities in the decisions on the applications for release pending
trial, and of the true facts mentioned by the applicant in his appeals,
that the Court should decide whether or not there had been a violation
of the provisions concerned;

Whereas, in relation to the allegations under Article 6, paragraph (1)
(Art. 6-1), of the Convention, the Court had regard to the exceptional
circumstances of the particular case concerned in determining the
question of a violation of this provision;

Whereas, similarly, in a series of previous decisions concerning the
question of the length of detention on remand and of the proceedings
themselves, the Commission has held that the reasonableness of the
periods involved must be assessed not in abstracto but in the light of
the particular circumstances of the case concerned (see, for example,
the decisions on the application of the cases of Matznetter,
St&#195;¶gm&#195;¼ller, Neumeister, Wemhoff and Gericke);

Whereas Article 27, paragraph (2) (Art. 27-2), of the Convention in
requiring the Commission to declare inadmissible any application from
an individual which it considers to be "manifestly ill-founded", does
not permit the Commission, at the stage of considering the
admissibility, to reject a complaint whose lack of foundation cannot
be so described (see, for example, Applications Nos. 1474/62 and
1769/63, Collection of Decisions, Vol. 11, pages 50 and 59);

Whereas, in the present case, the Commission has carried out a
preliminary examination of the information and arguments submitted by
the parties with regard to the applicant's complaints under Article 5,
paragraph (3) and Article 6, paragraph (1) (Art. 5-3, 6-1), of the
Convention concerning the length of his detention on remand and of the
proceedings on the charges preferred against him; whereas the
Commission finds that these complaints are of such complexity that
their determination should depend upon an examination of their merits;
whereas it follows that they cannot be regarded as manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;

C. As regards the alleged violation of Article 6, paragraph (1)
(Art. 6-1), of the Convention in relation to the proceedings before the
Constitutional Court

[/align]

----------


## هيثم الفقى

[align=left]Whereas the same reasoning applies in regard to the applicant's
complaint under Article 6, paragraph (1) (Art. 6-1), of the Convention,
concerning the proceedings before the Constitutional Court;

Whereas this provision states that:

"In the determination of his civil rights and obligations ... everyone
is entitled to a fair ... hearing ... by an independent and impartial
tribunal established by law ...;"

Whereas the applicant alleged that, insofar as the constitutional
appeal was an extraordinary remedy under Austrian law, he was denied
access to a court as guaranteed by the above provision; and,
furthermore, that the refusal on the part of the Constitutional Court
to deal with his allegations of bias of certain members of the Regional
Real Property Sales Commission at Linz constituted a violation thereof;
whereas the respondent Government has submitted that Article 6,
paragraph (1) (Art. 6-1), of the Convention did not guarantee a right
to proceedings before a court of law but simply laid down basic rules
or procedure where national legislation makes provisions for judicial
proceedings; whereas the respondent Government has further submitted
that the aforesaid provision was not applicable to proceedings
concerning the approval of sales contracts by the Regional Real
Property Sales Commission as such proceedings did not involve the
determination of civil rights within the meaning of that provision;

Whereas the Commission has made a preliminary examination of the
information and arguments submitted by the parties with regard to the
above complaints;  whereas the Commission considers that these
complaints raise important questions under Article 6, paragraph (1)
(Art. 6-1), of the Convention; whereas, in particular, they call for
an interpretation of the notion "determination of civil rights by a
tribunal" within the meaning of that provision; whereas the Commission
finds again that the issues presented by the said complaints are of
such complexity that their determination should depend upon an
examination of their merits; whereas it follows that they also cannot
be regarded as manifestly ill-founded within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention;

Whereas, therefore, the applicant's complaints under Article 5,
paragraph (3), and Article 6, paragraph (1) (Art. 5-3, 6-1), of the
Convention in relation to the length of his detention on remand and of
the criminal proceedings against him as well as his complaints under
Article 6, paragraph (1) (Art. 6-1), of the Convention in relation to
the proceedings before the Constitutional Court cannot be declared
inadmissible as being manifestly ill-founded in accordance with Article
27, paragraph (2) (Art. 27-2), of the Convention; and whereas no other
ground for declaring these parts of the application inadmissible has
been found;

D. As regards the alleged violation of Article 5, paragraph (4)
(Art. 5-4) of the Convention, in relation to the procedure followed in
deciding on applications for release pending trial

Whereas, in regard to the applicant's complaint, submitted during the
oral hearing before the Commission, that the decisions relating to his
detention on remand were given after the court had heard the
prosecuting authority, but in the absence of the applicant or his
lawyer; whereas, in this respect, the applicant alleges a violation of
Article 5, paragraph (4) (Art. 5-4) of the Convention which grants to
every detained person the right "to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful" (emphasis added);

Whereas the Commission again had regard to the judgment of 27th June,
1968, given by the European Court of Human Rights in the "Neumeister"
case; whereas in that case the Court held that Article 5, paragraph (4)
(Art. 5-4) of the Convention simply provided that proceedings against
detention on remand should be allowed and be taken before a "court",
namely an authority possessing judicial character, that is being
independent both of the executive and of the parties to a case, but
that this provision did not relate to the procedure to be followed;
whereas the Court further stated that the main concern of the above
provision was that remedies concerning detention on remand should be
determined speedily and that, consequently, full written proceedings
or an oral hearing of the parties in the examination of such remedies
were a source of delay which should be avoided in this field;

Whereas the Commission by a majority vote had reached a similar
conclusion in the "Neumeister" case (cf. Report 1936/63 of 27th May,
1966, p. 87); whereas the facts and the arguments submitted by the
applicant in the present case do not disclose any grounds which would
compel the Commission to deviate for its previous opinion and from the
holding of the European Court of Human Rights; whereas the Commission
consequently finds that this part of the application does not disclose
any appearance of a violation of the rights and freedoms set forth in
the Convention and, in particular in Article 5, paragraph (4)
(Art. 5-4) of the Convention, whereas it follows that, in this respect,
the application is manifestly ill-founded and must be rejected in
accordance with Article 27, paragraph (2) (Art. 27-2), of the
Convention;

Now therefore the Commission

1. rejects the general objections made by the respondent Government as
to the admissibility of the application in their entirety (cf. A
above);

2. rejects as being manifestly ill-founded the allegations by the
applicant in respect of Article 5, paragraph (4) (Art. 5-4) of the
Convention (cf. D above); but

3. declares admissible and retains without in any way prejudging the
merits of the case, the allegations made by the applicant in respect
of Article 5, paragraph (3) and Article 6, paragraph (1)
(Art. 5-3, 6-1), of the Convention as regards the length of his
detention on remand and the length of the criminal proceedings against
him, and of Article 6, paragraph (1) (Art. 6-1), of the Convention, as
regards the proceedings before the Constitutional Court (cf. B. and C
above).[/align]

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