# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة الأوروبية لحقوق الإنسان > Decisions of The European Court of Human Rights >  Ernst STOGMULLER v. AUSTRIA - 1602/62 [1964] ECHR 10 (01 October 1964)

## هيثم الفقى

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Ernst ST&Atilde;–GM&Atilde;œLLER v. AUSTRIA - 1602/62 [1964] ECHR 10 (01 October 1964) 
THE FACTSWhereas the facts of the case as submitted by the Parties may besummarised as follows:1. The Applicant is an Austrian citizen, born in 1934, and at presentliving in Vienna.In 1955 the Applicant was employed as an inspector with the "Heimat"Insurance Company in Vienna. While thus engaged, it appears that hebegan both on his own account and for the Company to negotiate loansto the company's clients and finally became a full-time and independentfinancial agent.On 10th January 1958 he founded the partnership business of St&Atilde;¶gm&Atilde;¼ller& Co. Ltd. in association with two other persons. The company, whoseregistered office was in Linz, had an initial capital of 100,000,-schillings. Its activities consisted of transactions relating toproperty, including negotiating and advancing loans secured by landedproperty or otherwise, the administration of property againstremuneration, the negotiation of settlements in and out of court, aswell as a house agency and commission business. The Company alsocarried on the business of wholesale and retail trading in goods of allkinds, including in particular, importing and exporting. All threepartners were registered as directors, the company's business beingable to be transacted by any two of them. In practice, ErnstSt&Atilde;¶gm&Atilde;¼ller, who owned 80 % of the capital stock, managed the businessalone and, in August 1959, the Applicant became sole director andtransferred the registered office from Linz to Vienna. On 14th August1961, the Applicant sold this company and since that date has not takenpart in any commercial activity.2. As early as 1954 information against the Applicant was repeatedlylaid before the Public Prosecutor's Office in Vienna and elsewhere bypersons who claimed they had been the victims of fraudulent, and laterusurious, business methods practised by St&Atilde;¶gm&Atilde;¼ller as an insuranceagent, a second-hand car dealer and financial agent. The criminalproceedings instituted following these accusations were later suspendedin all but four cases or were concluded with the acquittal of theApplicant.In connection with a particular civil action brought by the "Heimat"Insurance Company before the District Court of Ferlach, the Judge feltobliged, in view of the disclosure of certain business practices of theApplicant, to communicate the facts of the case to the PublicProsecutor's Office. The consequent investigations resulted in thePublic Prosecutor's Office at Klagenfurt charging the Applicant withfraud on five counts under Sections 197, 200, 201 (d), 203 and 199 ofthe Penal Code.On 9th July 1959, the proceedings relating to these charges weretransferred at St&Atilde;¶gm&Atilde;¼ller's request to the Regional Court of Viennawhich acquitted him on 15th June 1960. A plea of nullity lodged by thePublic Prosecutor's Office was then examined by the Supreme Courtwhich, by a decision of 31st January 1961, upheld the Regional Court'sjudgment on three of the counts and referred the case back to the Courtfor review of two charges. On 28th May 1963, the latter convicted theApplicant under Sections 197 and 199 (a) of the Penal Code before theDistrict Court of Vienna in respect of a charge of perjury committedon 12th December 1957. He was sentenced to five months imprisonment butwas acquitted on the other charges. He then entered a plea of nullityagainst his conviction, and this plea is still pending before theSupreme Court.3. On 5th December 1957, following the filing of numerous depositions,the District Court of Wels opened preliminary enquiries concerningfurther alleged offenses of fraud under Sections 197 and 200 of thePenal Code and later of usury under Section 2 (4) of the Usury Act(Wuchergesetz) and on 3rd March 1958 the Court remanded the Applicantin custody under Section 175 (3) and 180 (1) of the Code of CriminalProcedure. Following a request by St&Atilde;¶gm&Atilde;¼ller on 15th March 1958, thecase was transferred to the Regional Court of Linz and, on 21st April1958, the Applicant was released on conditions.4. In June 1958, supplementary information, covering more than 2,000pages, was filed with the Public Prosecutor's Office in Linz allegingfraud, misappropriation of funds and profiteering by the Applicant andalso by a Dr. Ernst Standhartinger, a barrister. St&Atilde;¶gm&Atilde;¼ller wasaccused, in particular, of having from 1957 onwards made a practice ofdemanding exorbitant security for loans from a large number of personswho were apparently in difficult financial circumstances and further,of having, alone or together with other persons, obtained money fromnumerous other persons by fraudulent practices and of havingmisappropriated capital entrusted to him.The investigating magistrate at the Regional Court of Linz had justbegun extensive enquiries when the Applicant submitted a request on rhOctober 1958 for the case to be transferred to the Regional Court ofVienna. Since the persons accused with him had agreed to this, the casewas duly transferred.After a study of the voluminous files, the examining magistrate inVienna decided to continue preliminary investigations into 31 chargesof misappropriation of funds, 21 charges of fraud and a further 21charges under Sections 2 and 3 (4) of the Usury Act. Enquiries weresubsequently extended to 12 other accusations and suspended on 8 more.On 10th February 1961, the Applicant, then at liberty, was informed onthese individual accusations.5. When the Applicant failed to appear at the hearing fixed for  August1961, police enquiries established that he had flown to Greece in anaeroplane said to belong to his father. On his return, he wasre-arrested on thy August 1961 by a court order which had been made inview particularly of strong suspicions that he had committed freshoffenses after his release (Section 175, paragraph 1 (2) and (4) of theCode of Criminal Procedure).On thy October 1961, the Regional Court of Vienna, rejecting an appeallodged by the Applicant against his re-arrest, stated that officialenquiries had revealed that he had made several unauthorised journeyswithin Austria and abroad and that, in accordance with Section 191 ofthe Code of Criminal Procedure, his re-arrest had followed as thenatural consequence of his breach of the conditions upon which he hadbeen released. The Court further pointed out that, since St&Atilde;¶gm&Atilde;¼ller hadin the meanwhile qualified as a pilot and had made frequent flightsabroad in an aeroplane belonging to his family, there was an obviousdanger that he might attempt to escape, particularly as the offensesimputed to him were punishable by a prison sentence of five to tenyears.As a further ground for rejecting the Applicant's appeal, the Courtreferred to the danger of recidivism as the Applicant had, since hisrelease in 1958, allegedly committed more offenses of the characterreferred to in Section 183, 197, et sen. and 205 (c) of the Penal Code.By a decision of 10th November 1961, the Court of Appeal of Viennadismissed St&Atilde;¶gm&Atilde;¼ller's appeal against the decision of the RegionalCourt, having expressly taken into consideration the danger of hiscommitting further offenses. The Court did not, however, support thefinding of the lower court that the Applicant might attempt to escapefrom Austria.A further request by the Applicant for his release was rejected bydecision of the investigating magistrate on 3rd January 1962 on thesame ground, and the subsequent appeal lodged by Dr. Ada Tammy, theApplicant's counsel, was dismissed by the Regional Court of Vienna onthy January 1962. The Court of Appeal of Vienna upheld this decisionon 14th March 1962.6. Since the Applicant's attempts to secure his release wereunsuccessful, he then filed several applications and complaints. In anapplication of 31st October 1962, addressed to the President of theRegional Criminal Court of Vienna, he complained inter alia, that theexamining magistrate was deliberately protracting the proceedings,which had already been pending for five years, and that during his 14months' detention he had been heard on only three occasions. Thisapplication was dismissed. The Applicant then lodged a disciplinarycomplaint (Aufsichtsbeschwerde) which was also dismissed by the Courtof Appeal of Vienna in a decision of 23rd January 1963.In a further application of 7th November 1962, the Applicant challengedthe Court of Appeal of Vienna, and the courts of first instance withinits jurisdiction on grounds of partiality, alleging that one of thejudges in Vienna was also involved in the case and that Dr. ErnstStandhartinger, who was accused with him, was a close relative of aViennese judge. At the same time, he requested the transfer of his caseto the Regional Court of Salzburg.The Supreme Court, which was required to pronounce only on the issueof the alleged lack of impartiality of the Court of Appeal of Vienna,dismissed the Applicant's motion on 6th February 1963, having foundthat there were no grounds for fearing that the Court would allowitself to be influenced by other than purely objective considerations.On 27th February 1963, the Court of Appeal of Vienna rejected theApplicant's motion in respect of the courts of first instance on thegrounds that the judges named by the Applicant had nothing to do withthe Applicant's case and were in no way associated with the judgesconducting it and that, moreover, Dr. Ernst Standhartinger was not aclose relative of the Viennese judge of the same name. The Applicant'srequest for the transfer of his case was also rejected.An application by the Applicant to the Constitutional Court submittingthat the proceedings against him had already continued for five yearsand that, although he had been in custody for 18 months, there wereseveral matters on which he had not yet been heard, was dismissed bya decision of the Constitutional Court on 27th March 1963 on the groundthat it was not competent to examine appeals against court judgmentsor decisions or against the behaviour of judicial organs with regardto jurisdiction.7. On 26th August 1963 the Applicant was released on bail of 200,000Schillings. The investigation against him is still being continued andhe has not yet been formally charged.The submissions of the PartiesWhereas in his Application form, in his reply of 14th September 1963and at the oral hearing on 1st October 1964, the Applicant allegesviolations of:- Article 5, paragraph (1) (c) in that he was arrested and detainedwithout reasonable suspicion;- Article 5, paragraph (3) in that the investigation against him didnot necessitate his detention for periods totalling 2 years and 7weeks;- Article 6, paragraph (1) in that he has not been brought to trialwithin a reasonable time;- Article 6, paragraph (1) in that the examining magistrate does notcarry out the investigation against him in an impartial manner;  -Article 6, paragraph (3) in that the investigating judge has refusedto hear certain witnesses for the defence;Whereas the Respondent Government has replied to these allegations inits written observations of 28th August and 9th December 1963 and atthe oral hearing on 1st October 1964;Whereas the submissions of the Parties on these various issues may besummarised as follows:In respect of the alleged violation of Article 5, paragraph (1) (c) ofthe ConventionThe Respondent Government submitted that the number of offenses imputedto the Applicant and investigated by the examining magistrate, Dr.Leonhard, gave rise to a strong suspicion that the Applicant was guiltyof offenses punishable by a prison sentence of five to ten years. Hisarrest and detention were therefore justified in the interests ofjustice. Furthermore, it could not be excluded that the Applicantwould, if remaining in liberty, have committed further offenses.The Government also gave details as to the accusations which in 1961and 1962 had warranted the rejection of the Applicant's two requestsfor release. It further contested the Applicant's statement that he hadreceived permission to leave Austria and submitted that his failure toappear at a hearing on 18th August 1961 constituted a breach of theconditions upon which he was released in 1958. In conclusion, itsubmitted that this allegation was manifestly ill-founded.The Applicant submitted that his arrest and detention were notjustified under the Convention. A denunciation, which has been neitherproved nor even investigated, cannot be a basis of "a reasonablesuspicion" within the meaning of Article 5, paragraph (1) (c). He addedthat he had been able to refute each accusation when called upon tomake a statement before the examining magistrate. The Austrian Courtshad attempted to justify his arrest and detention on the ground thathe might commit further offenses, but they had failed to take intoaccount that, prior to his second arrest on 25th August 1961, he hadsold his company and finally withdrawn from all commercial activities.As to his failure to attend the hearing on 18th August 1961, hesubmitted that, on receiving the summons, he asked his lawyer torequest an adjournment of the hearing to which the examiningmagistrate, Dr. Leonhard, agreed. He returned from his journey toGreece on 19th August 1961 and immediately reported his return to hislawyer and to Dr. Leonhard. Nevertheless, the latter issued less thana week later a warrant for the Applicant's arrest.He further submitted that he had a standing permission to travelabroad, the only restriction being that he left his address with hislawyer.In respect of the alleged violation of Article 5, paragraph (3) of theConventionThe Respondent Government submitted that a danger existed in 1961 thatthe Applicant might commit further offenses and that his detention wasthen necessary. In 1963, that is two years after he had wound up hisaffairs, no such danger existed and the Applicant could be released onbail.It further submitted that, according to the above provision of theConvention, an arrested person shall be entitled to trial within areasonable time or to release pending trial. As the Applicant wasreleased on 26th August 1963, it concluded that the alternativeprovision did not come into consideration and paragraph (3) had beenduly respected, and the Commission was barred from examining the lengthof the period during which the Applicant had been detained.In any event, the term "within a reasonable time" should be given aflexible interpretation in the light of the particular circumstancesof each case. A detention of the Applicant for a prolonged period wasnecessary in view of the extremely complex nature of the accusationslaid against him.The Applicant submitted that the above provision had been violated inthat he had not been brought to trial within a reasonable delay orreleased pending trial. The fact that he was released prior to trial,namely on 26th August 1963, did not bar the Commission from examiningwhether or not a period of detention totalling 2 years and 7 weeks wa***cessive. He pointed that the reasons which finally led to his releasein 1963 already existed and ought to have been accepted in 1961;indeed, prior to his arrest, he had on 14th August 1961 sold hiscompany and voluntarily detached himself from any commercial activitywhich, in the eyes of the Prosecution, might have tempted him to commitfurther offenses. In fact, the grounds on which his release was orderedcorresponded closely to those contained in his own requests for releasetwo years earlier.During the two years which he had spent in prison pending trial, he hadbeen heard by the examining magistrate on 13 occasions only, namely,on 26th August and 28th December 1961, 11th, 13th, 16th, 17th, 18th and23rd July 1962, 29th May, 18th June, 5th, 7th and 9th July 1963. Thesehearings related to only five accusations out of about 80 underinvestigation.During the year which has elapsed since his release he has been heardon 15 accusations. This tends to show that his detention was entirelysuperfluous and purposeless.In respect of the alleged violation of Article 6, paragraph (1) of theConvention in that the Applicant was not brought to trial within areasonable time.The Respondent Government submitted that the accusations against theApplicant were extraordinarily complex and difficult to investigate.It was not contested that the preliminary examination had begun in 1957and that it was difficult now, after almost seven years, to give anyprecise information as to when this investigation could be completed.It was, however, submitted that the term "reasonable time" should beinterpreted in relation to the special circumstance of each case. Thepresent case was extraordinary in that more than 80 differenttransactions had to be carefully examined and these transactions wereof a particularly complicated factual and legal character and in thatthe intransigent behaviour of the Applicant did not facilitate theirexamination.[/align]

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## هيثم الفقى

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Within the space of 5 months in 1962 and 1963, the Applicant filed no
fewer than 28 applications and complaints calling for an answer or a
decision by the examining magistrate. As was clear from a letter
addressed by the Applicant to his legal adviser, Dr. Ada Tammy, on 5th
February 1963, all these applications and complaints were part of a
deliberate manoeuvre to obtain the replacement of the present examining
magistrate, who was thoroughly conversant with the facts of the case,
by another magistrate. This assumption was strengthened by a statement
in the same letter to the effect that St&#195;¶gm&#195;¼ller's primary objective
was not his release but a change of magistrate. There were consequently
strong grounds for supposing that, when he discovered that the
examining magistrate was unusually familiar with business transactions
and was thoroughly acquainted with the content of the file, St&#195;¶gm&#195;¼ller
began to bombard him with applications and complaints in an attempt to
impede the progress of the enquiry.
From a report by the examining magistrate, dated 10th January 1963, it
emerges that St&#195;¶gm&#195;¼ller was heard by the police authorities on most of
the accusations. It was, however, only possible to hold a detailed and
exhaustive hearing on three accusations because plans for further
hearings had to be interrupted by reason of St&#195;¶gm&#195;¼ller's motion of 26th
June 1962 challenging the examining magistrate. Since the files had to
be submitted to the higher Court authorities for the examination of
further motions of challenge and complaints, the examining magistrate
had no access to them for six months.
The case-file now consists of 15 volumes averaging 500 pages each and
60 ancillary files. Owing to the large number of offenses and the
complicated nature of the subject-matter, not to mention the attitude
of the accused, investigation was proving extremely difficult. In
particular, the Applicant had refused, as a matter of principle, to
sign a summary record and insisted on verbatim reports of his
statements. Since the examining magistrate did not deny him this right,
his statements on one single accusation often covered as many as 30
typewritten pages. In examining about 70 of the 80 transactions under
review, the examining magistrate had so far heard more than 130
witnesses from all over Austria and in most cases, such evidence had
not been obtained by letters rogatory but personally. The offenses
committed by St&#195;¶gm&#195;¼ller involve transactions that were deliberately
complicated and, in order to unravel them, the examining magistrate had
to know the entire content of the file relating to each accusation. It
was submitted that the investigation of the accusations against the
Applicant had been carried out with reasonable speed.

The Respondent Government, moreover, referred to the legal
interpretation given by the Commission to the concept "person charged
with a criminal offense."  It was immaterial whether "accused"
("Beschuldigte" - i.e. still under investigation) or "defendant"
("Angeklagte") was meant by that term. The former was by Austrian law
assured of the shortest possible period of detention (Section 190,
paragraph 1 (2) of the Code of Criminal Procedure), and the latter (the
"defendant", i.e. person committed for trial after the indictment has
been drawn up) was equally assured of the most expeditious conduct of
the remaining part of the proceedings by virtue of Section 120 (1) of
the Code of Criminal Procedure.

The Respondent Government concluded that, in these circumstances,
Article 6, paragraph (1) was not violated and that this part of the
Application was manifestly ill-founded.

The Applicant submitted that he had not been brought to trial within
a reasonable time. The investigation of the accusations against him was
opened in December 1957 and was not yet completed.
If the accusations against him were so complex as contended by the
Respondent Government, it was clearly insufficient to assign only one
magistrate to deal with the case. Moreover, it was unnecessary for that
magistrate to hear in person all the witnesses who lived in various
parts of Austria. It would have been more expedient to obtain their
statements by letters rogatory.
He contested that his various applications and complaints had
necessitated a 13 months interruption of the proceedings. He pointed
out that he had not lodged any of these complaints until the autumn of
1962, that is, more than one year after his second arrest. They were
a result of the apparent lack of activity on the part of the examining
magistrate and of the exasperating slowness with which the
investigation progressed. They were not, as alleged by the Government,
an attempt to obstruct the progress of the proceedings.
In respect of the Article 6, paragraph (1) of the Convention in that
the examining magistrate does not carry out the investigation against
the Applicant in an impartial manner.

The Respondent Government submitted that the Applicant's subjective and
therefore immaterial criticisms of the examining magistrate were
manifestly ill-founded and inadmissible.

The Applicant submitted that the examining magistrate carried out his
investigations against the Applicant in an impartial and deliberately
prolonged manner. He added that the magistrate shielded Dr.
Standhartinger, who was also accused and who was related to a judge in
the Vienna circuit.

In respect of Article 6, paragraph (3), of the Convention

The Respondent Government submitted that the Applicant could not be
regarded as "a person charged with a criminal offence" within the
meaning of the above paragraph, as the investigation of the accusations
had not yet been completed. The very purpose of an enquiry, such as was
undertaken against the Applicant, was to establish the facts with a
view either to stopping any criminal proceedings contemplated or to
formulating an indictment against him.
It was further submitted that the Applicant had not adduced any
evidence which had not been taken into consideration in the
investigation. The Applicant submitted that, when a person is detained
pending the investigation of accusations against him, he is within the
meaning of the above paragraph, "charged with a criminal offence". The
examining magistrate had failed to take into account evidence and
testimony in the Applicant's favour.

THE LAW

As regards the alleged violations of Article 5, paragraph (1) (c)
(Art. 5-1-c) and of Article 6, paragraph (1) (Art. 6-1) in that
respectively there had been no reasonable suspicion to justify the
Applicant's arrest and in that the examining magistrate did not carry
out the investigation in an impartial manner.

Whereas, on 7th July 1964, the Commission examined the present
Application in regard to the above allegations;  whereas, on that
occasion the composition of the Commission was as follows: MM
Eustathiades, presiding, Beaufort, S&#195;¸rensen, Ermacora, Castberg,
Fawcett, Maguire, Triantafyllides, Welter and Balta;

Whereas, in respect of the alleged violation of Article 5, paragraph
(1) (c) (Art. 5-1-c), it pointed out that the Article provided as
follows: "No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law ... the
lawful arrest and detention of a person effected for the purpose of
bringing him before the competent legal authority on reasonable
suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing
after having done so."

Whereas, in its partial decision of 6th July 1959 on the admissibility
of Application No. 343/57 (Nielsen against Denmark), the Commission
held that "in determining what is 'a reasonable suspicion of having
committed an offence' permitting the arrest or detention of a person
under Article 5, paragraph (1) (c) (Art. 5-1-c) regard must be had to
the circumstances of the case as they appeared at the time of the
arrest and detention ...".

Whereas, in view of the multitude of accusations made against the
Applicant by private persons who had business contacts with him, the
Commission felt that the arrest of the Applicant on 25th August 1961
could not be said to have been made in violation of the above Article
(Art. 5-1-c); whereas it followed that this part of the Application was
considered to be manifestly ill-founded and rejected in accordance with
Article 27, paragraph (2) (Art. 27-2) of the Convention;

Whereas the Commission further held, in respect of the alleged
violation of Article 6, paragraph (1) (Art. 6-1), that the Applicant
had failed to submit any evidence to support his allegation that the
investigation proceedings, even though progressing very slowly, were
not conducted in an impartial manner by the examining magistrate;
whereas it followed that this part of the Application was also
considered to be manifestly ill-founded and rejected in accordance with
Article 27, paragraph (2) (Art.27-2) of the Convention;

As regards the remaining parts of the Application

Whereas during the oral hearing held before the Commission on 1st
October 1964 the Applicant's lawyer, Dr. Tammy, stated that he only
maintained his claim in regard to the alleged violation of Article 5,
paragraph (3) (Art. 5-3) of the Convention by reason of the Applicant's
detention for periods totalling 2 years and 7 weeks;

Whereas it is thus clear that the Applicant withdrew his remaining
allegations under Article 6, paragraphs (1) and (3) (Art. 6-1, 6-3) of
the Convention;  Whereas in these circumstances the Commission decides
not to avail itself of its competence further to examine ex officio
these allegations;  Whereas, consequently, the only question upon which
the Commission has to decide is whether or not the Applicant's
detention from 3rd March to 21st April 1958 and from 25th August 1961
to 26th August 1963 constitutes a violation of Article 5, paragraph (3)
(Art. 5-3) of the Convention;  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 conditional
by guarantees to appear for trial."

Whereas the Applicant alleges that this detention pending trial for a
period of more than two years violates the above provisions;

Whereas the Respondent Government has submitted that, in view of the
complexity of the case and the difficulties of the investigation of the
charges against the Applicant, such period is not excessive nor
unreasonable and that the Application is, in this respect, manifestly
ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2)
of the Convention;  Whereas, in a series of previous decisions
concerning the question of the length of detention pending trial, the
Commission has held that the above provision of Article 5 (Art. 5) does
not lay down any definite standard, but should be interpreted according
to the circumstances of each case (See Applications Nos. 530/59 - S.
v. the Federal Republic of Germany - Yearbook III, page 184, 920/60 -
W. v. the Federal Republic of Germany - Collection of Decisions, Volume
8, page 46 and 1546/62 - ibid., Volume 9, page 58); whereas in these
cases the Commission found, on various grounds, that the special
circumstances of the cases concerned justified periods of detention
which were only slightly shorter than the period under review in the
present case;

Whereas, on the other hand, in its decision on the admissibility of
Application No. 1936/63 (Had v. Austria) the Commission held that it
could not consider manifestly ill-founded an allegation that a period
of detention of almost two years was in violation of the above
provision;

Whereas the Commission also refers to its decision of 2nd July 1964 by
which it decided admissible Application No. 2122/64 (Wemhoff v. the
Federal Republic of Germany).

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 to reject an application whose lack of
foundation cannot be so described (see Applications No. 1727/62 -
Collection of Decisions, Volume 12, page 29 and No. 2122/64).

Whereas, in the present case, the Commission has carried out a
preliminary examination of the information and arguments submitted to
the Commission by the Parties. Whereas the Commission finds that the
Applicant's complaints are of such complexity that their determination
should depend upon an examination of the merits of the case; 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 and cannot be declared inadmissible;

Now therefore, to the extent that the present Application was not
decided by the Commission in its session on 7th July 1964 and was
maintained by the Applicant during the oral hearing on 1st October
1964, the Commission declares it ADMISSIBLE and retains it for further
examination in accordance with Articles 28 et seq. (Art. 28) of the
Convention.
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