European Court of Human Rights

THE FACTS

Whereas the facts presented by the applicant may be summarised as
follows:

The applicant is an Austrian citizen born in 1926 and at present
resident in Vienna. He is represented by his lawyer Dr. S.

I. On .. February, 1948, the applicant's uncle, aunt and infant nephew
were found dead in their bedroom. A revolver was found on the floor
beside the body of Maria F., the applicant's aunt, and a scribbled
message on her bedside table. Further inquiries showed that she was,
and has reason to be, jealous on account of her husband's relations
with other women. It was accordingly assumed that she had shot her
husband and child and then committed suicide.

On .. June, 1949, the applicant, together with his mother and another
uncle, were imprisoned on suspicion of having stolen certain supplies
which has been deposited in their barn by a Vienna firm during the war.
A principal informant in the enquiries leading to this arrest was J.,
the brother of the applicant's aunt Maria F.

On .. July, 1949, 17 months after the crime, J. reported to the police
that when washing the body of his sister Maria he had found a bullet
in her hair. A letter was then drawn up in the police station by
officials who were investigating the other charge against the
applicant, signed by J. and sent to the public prosecutor's office in
Korneuburg. This report, which suggested that the applicant and his
mother were responsible for the murder, let to investigations being
opened against the applicant.

The impartiality and reliability of J., who later gave evidence against
the applicant at his trial, were strongly criticised by an
investigation commission (F. Commission) which was subsequently set by
the Ministry of Interior to investigate the case. Apart from his
allegation as to having found the bullet, J. made allegations, which
were believed by the trial court, suggesting that the applicant had
procured the message found on Maria F.'s bedtable in the course of a
party game 1 1/2 years previously. It appears that these allegations
were first made after the investigating police had obtained four expert
opinions to the effect that the message was in fact in the handwriting
of Maria F. and had not been copied by the applicant as he had alleged
in a confession which he later withdrew.

On .. November, 1949, the applicant was subjected to an examination by
police officials who are described in the report of the F. Commission
as having been young and inexperienced. The examination began at 2 p.m.
on .. November and continued until 2 a.m. on the following day, without
a break. After having indicated that he was exhausted and asked for a
rest which was refused, the applicant made a confession. This
confession was inaccurate in describing the details of the crime and
was withdrawn by the applicant three weeks later. The applicant stated
at the time and has at all times maintained that his motive in making
this confession was to clear his mother who was then under suspicion
of a capital offence. There is conflicting evidence as to whether his
fears in this respect were provoked or exaggerated by pressure from the
examining officers. On being taken back to his cell the applicant
attempted to commit suicide by cutting his wrists. The next day he was
taken before the examining judge before whom he repeated his
confession. On .. November the record of his examination before the
police was prepared and signed by the applicant. This record follows
closely that made by the examining judge on .. November but
incorporates some corrections, in particular with regard to the
position in which the child was shot.

On .. December, 1949, the applicant revoked his confession and has
since then at all times maintained his innocence.

On .. October, 1950, the applicant was convicted of murder by the
Regional Court (Kreisgericht) of Korneuburg and sentenced to life
imprisonment. His plea of nullity (Nichtigkeitsbeschwerde) from this
decision was dismissed by the Supreme Court (Oberster Gerichtshof) on
.. March, 1951.

II. On .. March, 1953, the applicant applied to the Ministry of Justice
for a retrial. On .. June, 1956, this application was forwarded to the
Attorney-General who subsequently stated that it contained nothing
requiring action by his department. The application was not forwarded
to the court. In 1956 a lawyer, who in the course of other proceedings
had to deal with the facts of the case, addressed two memorials to the
Attorney-General indicating evidence and arguments showing that the
applicant was innocent.

On 30th October, 1959, the applicant put his case before the
Commission. His application (No. 624/59) was rejected on 3rd June,
1960, on the ground that, with the exception of the allegation that the
Central Murder Commission had refused to make a fresh investigation of
his case, all the facts alleged related to a period before 3rd
September, 1958, the date of the entry into force of the Convention
with respect to Austria. Moreover, the refusal of a fresh investigation
did not violate any of the rights and freedoms guaranteed by the
Convention.

On 23rd December, 1960, the applicant, now represented by Dr. S., made
a new application for retrial. As a result of his application new
investigations were made and, in particular, a five-man Police
Commission was appointed by the Ministry of Interior under the
chairmanship of Dr. F. After extensive investigations, this Commission
submitted its report on .. November, 1964, which is critical of the
manner in which the crime was investigated, the reliability of much of
the evidence presented and accepted by the court and the conclusions
arrived at, in particular, as to the guilt of the applicant.

After two visits to the locus in 1963, at neither of which the
applicant was allowed to be present though his lawyer was present on
the second occasion, the court obtained a number of expert opinions in
1964 and 1965. The applicant complains that the written questions
addressed by his lawyer to the expert were vested by the prosecution.
Finally, on .. May, 1966, after what the applicant considers much
inexcusable delay, the Regional Court at Korneuburg set aside the
applicant's conviction on the ground that there was new evidence
available on three points:

-  as to the time of death, an expert medical opinion had established
that with regard to all three victims death had in all probability
occurred before midnight, although the possibility of their having died
later was not entirely excluded. This evidence prima facie excluded the
applicant as a suspect since he had an undisputed alibi until 12.30
a.m. The applicant's lawyer further points out that this expert report
was based on information furnished by the prosecution which suggested
that the victim had eaten later than the approximate times arrived at
by the court hearing the application for retrial;

-  contrary to what had been assumed at the trial, it was now
established by the expert evidence that not only Maria F. but also
Franz F. had received shots from a very short distance (Nahschüsse).
This evidence, taken with the other available evidence, made it
difficult to explain how the victims could have been shot by a third
person and made the theory that Maria F. had shot her husband and child
before shooting herself more plausible. The court also seems to have
accepted as correct certain other deductions by the experts as to the
direction of the shots but did not make this an express ground for
granting a retrial;

-  contrary to what was presumed at the trial, the paper on which the
message found on Maria F.'s bedtable was written was not the same as
certain other paper to which it was known that the applicant had easy
access.

The prosecution appealed against this decision but it was confirmed by
he Court of Appeal (Oberlandesgericht) in Vienna on .. July, 1966.

The applicant was there upon transferred to detention on remand and the
prosecution commenced investigations with a view to retrial. On ..
October, 1966, the prosecution applied for the proceedings against the
applicant to be terminated and on .. October, 1966, the applicant was
finally released, having been imprisoned for a total period of 17
years, 4 months and 10 days.

He complains that the period of detention on remand was unduly
prolonged since it was taken up entirely with the procuring of an
expert opinion which, as should have been foreseen, was entirely
inconclusive, other investigations which were directed not to
establishing the guilt or innocence of the accused but merely to making
a case against the applicant's claim for compensation and, finally, the
delay caused by the absence on holiday of the prosecutor and then of
the court.

III. On .. October, 1966, the Regional Court of Korneuburg rejected the
applicant's claim for compensation during the two periods of detention
on remand from .. June, 1949 to .. March, 1951, and from .. July, 1966
to .. October, 1966, and also the applicant's claim for compensation
on account of his conviction and sentence. The court considered that
the detention and imprisonment was initially justified by the suspicion
of theft and subsequently by suspicion of murder. Taking a somewhat
different view of the evidence from that assumed in the proceedings on
retrial, the court decided that the applicant had not succeeded in
invalidating (entkräften) the suspicion which lay upon him because:

-  although the medical opinions had established the probability that
death had occurred before midnight, the possibility of a later time had
not been entirely excluded;

-  although the expert opinions had established certain matters which
tended to increase the probability that the crime had been committed
by Maria F., this was not sufficient to invalidate the suspicion
resting on the applicant. Moreover, the court found that he had largely
contributed to the suspicion against him and his conviction by his
confession and this in itself was sufficient ground for refusing him
compensation.

The applicant's appeal (Beschwerde) against this decision was rejected
by the Court of Appeal on .. December, 1966. In doing so the Court made
it clear that where there was a difference it followed the findings of
the trial court as being inherently more trustworthy than those of the
subsequent F. Commission, and the subsequent expert opinions, except
on specific points on which the application for retrial had been
granted. Moreover it considered that the conclusion by the court which
granted the retrial application, that Maria F. had her last meal
between 7 p.m. and 7.30 p.m., must also be treated as invalid since
only a trial court was qualified to make such a finding. The court
further drew attention to a number of errors committed by the applicant
and stated finally that one could not speak of a possible error of
justice so long as no material was available on which to base
investigations against third persons who could have committed the crime
independently of the applicant and without his knowledge (von einem
Justizirrtum [kann] so lange nicht gesprochen werden ..., als keine
Anhaltspunkte für den Verdacht und die Ausforschung dritter Personen
vorliegen, die als unabhängig von dem Willen des Beschwerdeführers und
ohne sein Wissen handelnde Täter in Frage kommen).

IV. The applicant alleges violation of Articles 4, 5 and 6 of the
Convention.

Proceedings before the Commission

On 30th May, 1968, the application was examined by a group of three
members of the Commission who unanimously reported that the application
appeared to be admissible. The application was consequently
communicated to the respondent Government for its observations in
writing on the admissibility of the application, in accordance with
Rule 45, paragraph 2, of the Commission's Rules of Procedure.

The Government submitted its observations on 12th October, 1968. The
applicant's observations in reply were received on 21st November, 1968.

Submissions of the parties

The submissions made by the parties with regard to the articles invoked
by the applicant may be summarised as follows:

As to Article 4 of the Convention

1. Question of exhaustion of domestic remedies (Article 26 of the
Convention).

The respondent Government submits that the applicant has not exhausted
the domestic remedies, as he failed to bring an action for damages
against the officials concerned.

The applicant submits in reply that a party bringing such an action
must allege some fault on the part of the officials concerned. The
applicant, however, was not alleging any such fault.

2. Alleged violation of Article 4

The applicant refers to paragraph (2) of Article 4 and complains of the
work which he was forced to perform during the period he was detained
as a convicted prisoner.

The respondent Government submits that:

-  the applicant's detention was lawful, having been imposed by a
competent court in accordance with a procedure prescribed by law;

-  the work required to be done was work imposed in the ordinary course
of detention. The applicant was only required to do such work as is
normally required from convicted persons;

-  the mere fact that the remuneration granted to such prisoners is low
does not, of itself, constitute a violation of this Article
(Application No. 2413/65 - Collection of Decisions, Vol. 23, page 1).

The applicant submits in reply that:

-  his detention was not lawful his conviction having been
retrospectively annulled in accordance with a procedure prescribed by
law with the result that his status was in law the same as that of a
person who had been acquitted;

-  in any case, the legality of his detention is irrelevant since the
work which he was required to do cannot be correctly described as work
normally required from detained persons. In the first place, since in
Austria some convicted persons are not required to work at all (i.e.
persons serving terms of less than one year in court prisons) and
others, i.e. long terms prisoners, are required to work, it is not true
that in Austria convicted persons as a class are "normally" required
to work;

the work imposed, i.e. employment in the book-binding section, cannot
be considered as normal because:

-  it was not suitable to the applicant's level of education as a
college student;

-  it involved working in a position and under conditions which brought
about an affection of the inter-vertebral joints (Spondylarthrose);

-  although the inadequacy of the remuneration may not in itself
constitute a violation of the Convention, it is evidence that the work
imposed was inequitable and unsuitable and carried out against the will
of the person on whom it was imposed.

As to Article 5 of the Convention

1. Question of exhaustion of domestic remedies

The respondent Government submits that the applicant has not exhausted
the domestic remedies since:

-  as regards his detention on remand pending the retrial proceedings,
he failed to apply for release first to the Judges' Chamber
(Ratskammer) of the Regional Court and then to the Court of Appeal;

-  as regards the entire period of his detention - pending trial,
following conviction and pending retrial - he failed to bring an action
for damages against the officials concerned.

The applicant submits in reply that:

-  as regards the possibility, during his detention pending retrial,
of applying for release to the Judges' Chamber and the Court of Appeal,
such application would not have been successful. It is not necessary
to apply to a national court when the result would inevitably be the
repetition of a decision already pronounced (see the case of
Panevezys-Saldutiskis quoted in the Commission's decisions on
Applications No. 514/59 - X. v. Austria - Yearbook of the European
Convention on Human Rights, Vol. III, page 196 and No. 1936/63, ibidem
Vol. III, page 224). In the circumstances the applicant cannot be
blamed for not making a hopeless application, the only effect of which
would have been to further prolong the preliminary investigation and
thus his detention on remand;

-  as regards the possibility of bringing an action for damages against
the officials concerned, a party bringing such an action must allege
some fault on the part of the officials; the applicant, however, was
not alleging any such fault. Until recently (see Oberster Gerichtshof
[Supreme Court] Ev. B; Nr. 232/1967) Austrian jurisprudence has denied
any liability for officials concerned in a case of illegal deprivation
of freedom. Recently the Supreme Court has admitted that damages can
be claimed in such cases where there has been fault on the part of the
officials concerned. But the claim for damages for unlawful detention
under Article 5, paragraph (5) of the Convention is independent of any
fault on the part of the officials concerned,  it is a case of
liability for bringing about a certain state of affairs
(Erfolgshaftung). It is not to be expected that the applicant who has
already taken unsuccessful proceedings at first instance and on appeal
under the laws relating to compensation for detention should now bring
an action for damages for breach of official duty in which he would
have to prove fault on the part of the courts concerned.

2. Alleged violation of Article 5, paragraph (1) (a)

The applicant complains that his detention as a convicted person was
not "lawful" within the meaning of Article 5, paragraph (1).

The respondent Government submits that:

-  the applicant's detention as a convicted person was lawful having
been imposed by a competent court in accordance with a procedure
prescribed by law;

-  subsequent evidence which raises doubts as to the guilt of a
convicted person cannot affect the lawfulness of his imprisonment;

-  an order for retrial was not required to be based on the innocence
of the person concerned nor did it imply that he was innocent;

-  the discontinuation of the prosecution did not prove that the
applicant was innocent but merely that, twenty years after the event,
it was no longer possible to submit sufficient evidence to secure
conviction;

-  there are strong indications that the crime was committed by the
applicant, e.g. the finding by the trial court that it was committed
with his revolver.

The applicant submits in reply that:

-  the arguments advanced by the respondent Government raise the
general question of whether detention is lawful which is imposed by a
judgment which is later annulled. The answer must depend on the result
of the subsequent proceedings. Either these proceedings lead to a
second judgment imposing imprisonment, in which case the original
detention is confirmed and justified, or they lead to an acquittal or
- as in the present case - an abandonment of the prosecution. In this
case the detention is not retrospectively justified. The detention of
the applicant would only have been "lawful" if, on retrial, he had
again been convicted and sentenced to imprisonment. This opinion is
shared by the Federal Ministry of Justice which states in the
Explanatory Observations to the recent draft bill relating to
compensation for criminal detention and conviction (page 18):
"Unjustified prosecution occurs if .... a person who has been convicted
by a judgment which has become res judicata is acquitted in the course
of a new trial; the same applies if the proceedings against him are
discontinued. In these circumstances the detention or conviction - even
though on the state of the evidence at the time it was pronounced such
detention or conviction was in accordance with the law - was in fact
pronounced against an innocent person";

-  in fact the applicant's innocence results clearly from the working
of the order for retrial which rests on three important and mutually
independent conclusions. Moreover the order states expressly (page 15):
"X cannot have murdered the three above-mentioned persons in view of
the fact that he had an unshakeable alibi until 12.30 a.m.;

-  although, as the respondent Government has stated, an order for
retrial does not, generally speaking, presuppose the innocence of the
convicted person or necessarily establish his innocence, in this
particular case the applicant's innocence appears from the express
wording of the order;

-  the applicant takes strong exception to the respondent Government's
reference to the weapon with which the crime was committed. The
applicant made repeated efforts to have the question of the alleged
weapon clarified but the Austrian courts and authorities refused to
make the necessary enquiries or to produce records relating to the
issue of the weapon, which was apparently of a type issued to certain
members of the civil services. They have similarly failed to produce
records relating to its alleged requisition by an occupying power and
subsequent disappearance.

3. Alleged violation of Article 5, paragraph (1) (c), and paragraph (3)

The applicant complains that his detention on remand pending the
retrial proceedings violated Article 5, paragraph (1) (c) and paragraph
(3).

The respondent Government submits:

-  as regards paragraph (1), of Article 5, the detention on remand does
not become unlawful merely because, owing to the difficulty of
obtaining evidence, the prosecution was discontinued. The suspicion
still resting on the applicant was sufficient to justify this
detention. This was the point of view of the court which had ordered
the retrial on procedural grounds. The prosecution was discontinued
solely on account of the difficulty of obtaining evidence and in
particular because the weapon with which the crime was committed was
no longer available.

-  as regards paragraph 3 of Article 5, that the length of the
detention on remand was not unreasonable in view of the complexity of
the case. The problems to be clarified made it necessary to obtain a
further medico-legal expert opinion. As an illustration of the
difficulties in the case it should be mentioned that in the course of
the original preliminary investigation the applicant had made repeated
confessions and demonstrated the commission of the crime of triple
murder.

The applicant submits in reply that:

-  his detention pending retrial was unlawful because the prosecution
knew from the beginning that it would be impossible to bring sufficient
new evidence to convict the applicant. For the same reason, the
detention was unreasonably long. As a result of the expert opinions
given in the proceedings on the application for retrial (which had
lasted five years) the facts of the case were already sufficiently
clear;

-  the further investigations pursued by the prosecution during the
period of detention pending retrial consisted of an examination of the
policemen present when the applicant made his confession and the
obtaining of a slightly extended medico-legal opinion from one of the
experts. In neither case could the results which might reasonably be
expected from these investigations have been of such a nature as to
establish the applicant's guilt. It was therefore not reasonable that
he should be kept in detention pending the conclusion of obviously
irrelevant investigations;

-  the applicant takes exception to the reference by the respondent
Government to his confession. As has been explained in the application
this confession was obtained under unusual circumstances and withdrawn
after a short time. It was not maintained at the trial and has never
been repeated. As to the demonstration of the crime by the applicant
it was shown by the expert opinions given during the retrial
proceedings that the crime cannot have been committed in the manner
demonstrated by the applicant.

4. Alleged violation of Article 5, paragraph (5)

The applicant complains that the respondent Government's refusal to
compensate him for his unjustified detention violates Article 5
paragraph (5).

The respondent Government submits that paragraph (5) of Article 5 gives
a right to compensation only where the detention was in contravention
of paragraphs (1) to (4). It is irrelevant that the accused person is
subsequently proved innocent if the detention was itself lawful (see
Application No. 2412/65, Collection of Decisions, Vol. 23,

Attention! Manuscript page 44 missing!!

the legislation provides no governing principles according to which
this discretion shall be exercised and the two criteria established by
this legislation namely "weakening of suspicion" and "probability of
innocence" are so framed as to leave too wide a discretion to the
courts;

-  alternatively if the respondent Government is correct in maintaining
that the applicant cannot rely on Article 5, paragraph (5), in spite
of the fact that his innocence has been established, he can
nevertheless rely on Article 13 of the Convention as he has no
effective rational remedy.

As to Article 6 of the Convention

1. Retrial proceedings

The applicant complains that Article 6 was violated in the proceedings
on his application for retrial.

The respondent Government submits that, according to the constant
jurisprudence of the Commission, Article 6 does not apply to
proceedings on an application for retrial. This jurisprudence is
correct. It is clear from paragraph (1) of Article 6 that this Article
applies only to proceedings which involve the determination of either
civil rights and obligations or of a criminal charge. Proceedings on
an application for retrial do not involve the determination of either
civil rights and obligations or of a criminal charge.

The applicant refers in reply to the Commission's decision in
Application No. 2136/64 (Yearbook, Vol. 7, pages 298-310) and, in
particular, to the following passage (loc. cit. pages 304, 306):

"Whereas the Commission has frequently stated that a person who has
been convicted by a Court decision amounting to res judicata is not a
person 'charged with a criminal offence' within the meaning of Article
6 and thus not entitled to the rights guaranteed therein;

Whereas it has further held that the provisions of Article 6 are not
applicable to a convicted person during subsequent revision proceedings
initiated by him before a domestic Court, unless that Court is seized
of any criminal charges against him, whether it be the initial charge
or that which a Public Prosecutor might have newly formulated or
repeated if the convicted person's application for revision had been
granted."

The applicant states that he does not maintain his original complaints
relating to the long duration of the proceedings on his application for
retrial and to the alleged violation of Rules of Procedure during these
proceedings. He considers, however, that, in the proceedings following
the Regional Court's decision ordering a retrial, the Court was seized
of a criminal charge against him with the consequence that Article 6
applied. He complains that Article 6, paragraphs (1) and (3), was
violated in these proceedings.

2. Proceedings concerning the applicant's claim for compensation

The applicant complains that Article 6, paragraphs (1), (2) and (3),
was violated in these proceedings.

The respondent Government submits that:

-  proceedings concerning compensation for detention do not amount to
a trial on a criminal charge. Paragraphs (2) and (3) of Article 6
cannot therefore apply to such proceedings since the rules they
enunciate relate exclusively to the rights of the accused in criminal
proceedings. Persons other than an accused cannot claim any rights
under paragraphs (2) and (3) of Article 6 (see Applications No. 808/60,
Yearbook, Vol. V, page 108; No. 858/60, Yearbook, Vol. IV, page 225).
In compensation proceedings the applicant is not an accused person but
a person making a claim in public law:  Article 6, paragraphs (2) and
(3), cannot therefore apply to such proceedings. An applicant cannot
claim the benefit of these provisions in any proceedings which follow
the delivery of judgment (Applications No. 3126/64, Yearbook, Vol. III,
page 298; No. 1135/61, Yearbook, Vol. VI, page 194; No. 1237/61,
Yearbook, Vol. V, page 96);

-  proceedings concerning compensation for detention do not involve the
determination of a "criminal charge" nor that of "civil rights and
obligations" in the sense of Article 6, paragraph (1). The right to
receive compensation depends on the person in question being able to
show that he is innocent and that socially and morally he deserves to
receive such compensation. The right to receive compensation does not
depend on the detention having been unlawful or caused by the fault of
the officials concerned. Indeed, in most cases where compensation is
awarded the detention was lawfully imposed. Thus the right to
compensation is not governed by the principles of the civil law.
Damages for detention are compensation for damage suffered as result
of the acts of a public authority. The right to such compensation is
not a civil law right but a right arising under public law.

The applicant submits in reply that:

-  the proceedings concerning compensation for detention relate to a
"criminal charge" in the sense of Article 6. A criminal charge does not
mean a formal charge but criminal proceedings concerning an act
punishable under the criminal law. Under the present Austrian
legislation on compensation for unjustified detention, the court which
acquits the person previously convicted or terminates the proceedings
against him shall decide immediately on the question of compensation
for detention. This decision is thus the final act of the criminal
proceedings";

-  in the proceedings concerning the claim for compensation, the law
requires the "weakening of the suspicion" to be proved by the
applicant. In the Court of Appeal proceedings of .. December, 1966, the
burden of proof was, in fact, placed upon him. The order for retrial
of May, 1966 had annulled the original judgment. The actual wording of
this decision established the applicant's innocence beyond all doubt.
But in the compensation proceedings it was suddenly stated that the
suspicion against him "has not been weakened". The applicant was thus
treated as being guilty although his guilt has not been proved
according to law. The effects of this are not merely financial:  the
applicant found himself once again treated as a murderer and this is
not consonant with Article 6, paragraph (2);

-  the applicant's claim for compensation must be classified as a civil
right within the meaning of Article 6, paragraph (1). The Commission
decided in the Isop case (Application No. 808/60, Yearbook, Vol. V,
page 108) that "the question whether a right or an obligation is of a
civil nature within (the meaning of) Article 6, paragraph (1), of the
Convention does not depend on the particular procedure prescribed by
domestic law for its determination but solely on an appreciation of the
claim itself and of the purpose of the complaint" (loc. cit. page 122).
Article 5, paragraph (5), of the Convention established an obligation
not pay compensation for unjustified detention. A claim for such
compensation must be recognised as a civil right within the meaning of
Article 6. In continental law this category extends to matters which
are classified as public obligations. However, the question whether a
claim for compensation is to be classed as a civil right under Article
6 does not depend on the fact that a private individual has suffered
damage. The Austrian Supreme Court recognised that an unlawful
detention arising out of the fault of an official organ gives rise to
an action for damages against the official concerned. The purpose of
the existence of civil rights is to protect the citizen against the
superior power of the State;

-  in the compensation proceedings before the Regional Court in
Korneuburg, the prosecution lodged voluminous written pleadings which
were not made known to the defence until after the decision rejecting
the applicant's claim had been taken on .. October, 1966. The
prosecution were present in court and argued the case against the
applicant. Neither the accused nor defence counsel were present at the
hearing. The law makes no provision for written pleadings to be lodged
by an applicant or his counsel. Defence counsel attempted in haste, and
without proper preparation, to draw up submissions but it was
impossible for him in doing so to take account of the prosecution
pleadings which he had not received. The result was that the same three
judges who in May had stated that the applicant was innocent now found
that the suspicion against him had not been weakened. From the point
of view of the merits this constitutes a reformatio in peius.

On appeal the prosecution again filed written pleadings and argued the
case in court in the absence of the applicant and defence counsel. The
prosecution counsel concerned in both instances had previously been
concerned in the case against the applicant and at no time during the
previous proceedings had they ever examined or mentioned a single point
telling in favour of the applicant although under an obligation to do
so under Article 3 of the Code of Criminal Procedure. In these
circumstances the principle of "equality of arms" was clearly violated
- see the cases of Ofner, Hopfinger, Pataki, Punshirn, Plischke and
Neumeister and Applications No. 1135/61 (Yearbook, Vol. VI, pages 194,
202) and No. 1793/62 (ibidem pages 458, 460).

THE LAW

Whereas the applicant complains that his detention as a convicted
person violated Article 5, paragraph (1) (a) (Art. 5-1-a), of the
Convention, in that it was not "lawful" within the meaning of this
provision, his conviction having been set aside in 1966; whereas
Article 5, paragraph (1) (Art. 5-1), guarantees to everyone the right
to liberty and security of person;

Whereas, however, under subparagraph (a) (Art. 5-1-a), a person may be
deprived of his liberty, in accordance with a procedure prescribed by
law, by "lawful detention ... after conviction by a competent court";

Whereas the Commission has examined the applicant's complaint with
regard to his detention between 3rd September, 1958, being the date of
the entry into force of the Convention with respect to Austria, and ..
July, 1966, being the date on which the Regional Court's order for
retrial acquired the force of res judicata; whereas the Commission
finds that this decision, which set aside the applicant's conviction
of 1950, did not retroactively affect the "lawfulness" of his detention
within the meaning of Article 5, paragraph (1) (a) (Art. 5-1-a);

Whereas it follows that the applicant's complaint under Article 5,
paragraph (1) (a) (Art. 5-1-a), is manifestly ill-founded within the
meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas the applicant further complains that, during his detention as
a convicted person, he was required to perform forced or compulsory
labour, contrary to Article 4 (Art. 4) of the Convention; whereas he
considers in particular that the conditions of Article 4, paragraph (3)
(a) (Art. 4-3-a), were not fulfilled in his case, his conviction having
been set aside in 1966;

Whereas the Commission has again examined this complaint with regard
to the applicant's detention between 3rd September, 1958 and .. July,
1966; whereas it is true that Article 4, paragraph (2) (Art. 4-2), of
the Convention prohibits forced or compulsory labour; whereas, however,
it follows from paragraph (3) (a) (Art. 4-3-a), that, for the purpose
of this Article, the term "forced or compulsory labour" shall not
include "any work required to be done in the ordinary course of
detention imposed according to the provisions of Article 5 (Art. 5)";
and whereas the Commission has already found that the court decision
of 1966, which set aside the applicant's conviction of 1950, did not
retroactively affect the lawfulness of his detention within the meaning
of Article 5, paragraph (1) (a) (Art. 5-1-a);

Whereas it follows that the work performed by the applicant during his
above detention was covered by Article 4, paragraph (3) (a)
(Art. 4-3-a), read in conjunction with Article 5 (Art. 5);

Whereas, in this connection, the Commission refers to its decision on
the admissibility of Applications Nos. 3114/67, 3172/67 and 3188/67 to
3206/67 (Collection of Decisions, Vol. 27, pages 97, 110-111);

Whereas it follows that the applicant's complaint under Article 4
(Art. 4) is also manifestly ill-founded;

Whereas the applicant further complains that his detention on remand
pending the retrial proceedings violated Article 5, paragraph (1) (c)
and paragraph (3) (Art. 5-1-c, 5-3), of the Convention;

Whereas he maintains in particular that during the period concerned,
there existed no "reasonable suspicion" within the meaning of paragraph
(1) (c) (Art. 5-1-c), that he had committed an offense;

Whereas, under Article 5, paragraph (1) (c) (Art. 5-1-c), a person may
be deprived of his liberty, in accordance with a procedure prescribed
by law, by "lawful ... detention ... effected for the purpose of
bringing him before the competent legal authority on reasonable
suspicion of having committed an offence"; and whereas, according to
paragraph (3) of Article 5 (Art. 5-3), everyone detained under
applicant (1) (c) (Art. 5-1-c) shall be entitled "to trial within a
reasonable time or to release pending trial";

Whereas, in a previous case, the Commission has considered, but not
decided, the question whether the provisions of Article 5, paragraph
(3) (Art. 5-3), which concern detention pending trial, apply also to
detention pending retrial (see Application No. 1873/63, Collection of
Decisions, Vol. 22, pages 17, 21); whereas, assuming in the present
case that both paragraph (1) (c) and paragraph (3) of Article 5 (Art.
5-1-c, 5-3) may be invoked with respect to detention pending retrial,
the Commission does not find that these provisions were violated;
whereas, in this connection, it has had regard to the decisions of the
domestic courts, insofar as they have been submitted, and also noted
the uncontested statement by the respondent Government that, in the
view of the Regional Court which ordered the retrial, the suspicion
still resting on the applicant was sufficient to justify his continued
detention; whereas the Commission further observes, in respect of the
applicant's complaint under paragraph (3), of Article 5 (Art. 5-3),
that his detention pending retrial did not last longer than three
months and six days, namely, from .. July until .. October, 1966;
whereas, in the circumstances, this period cannot be regarded as
unreasonable; whereas it follows that the applicant's complaints under
Article 5, paragraph (1) (c) and paragraph (3) (Art. 5-1-c, 5-3), are
also manifestly ill-founded;

Whereas the applicant further complains that the respondent
Government's refusal to compensate him for his unjustified detention
violates Article 5, paragraph (5) (Art. 5-5), of the Convention;

Whereas, under this provision, the applicant would be entitled to
compensation if he had been the victim of arrest or detention in
contravention of paragraphs (1) to (4) of Article 5
(Art. 5-1, 5-2, 5-3, 5-4);

Whereas, however, the Commission has already found that his complaints
under paragraph (1), subparagraphs (a) and (c), and paragraph (3)
(Art. 5-1-a, 5-1-c, 5-3) do not disclose any appearance of a violation
of the Convention; whereas it follows that his complaint under
paragraph 5 (Art. 5-5) is also manifestly ill-founded;

Whereas the applicant further complains that Article 6 (Art. 6) of the
Convention was violated in the proceedings on his application for
retrial;

Whereas, however, in accordance with the Commission's constant
jurisprudence, proceedings concerning applications for retrial fall
outside the scope of Article 6 (Art. 6) of the Convention (see
Applications No. 864/60, Collection of Decisions, Vol. 9, pages 17,
20-22, and No. 1237/61, Yearbook of the European Convention on Human
Rights and Fundamental Freedoms, Vol. V, pages 100-102); whereas it
follows that this complaint is incompatible with the provisions of the
Convention within the meaning of Article 27, paragraph (2) (Art. 27-2);

Whereas the applicant further complains that Article 6, paragraphs (2)
and (3) (Art. 6-2, 6-3), were violated in the proceedings concerning
his claim for compensation; whereas these provisions apply only to
persons "charged with a criminal offence"; and whereas the applicant's
claim for compensation was considered by the Austrian Courts after his
original conviction had been set aside and the subsequent investigation
against him had been terminated; whereas, at that state, he was not a
person charged with a criminal offence; whereas it follows that his
above complaint is also incompatible with the provisions of the
Convention;

Whereas, finally, the applicant complains that Article 6, paragraph (1)
(Art. 6-1) of the Convention was violated in the proceedings on his
application for compensation; whereas this provision governs the
determination of criminal charges and of civil rights and obligations;

Whereas the Commission has already found that, during the above
proceedings, the applicant was not under any criminal charge; whereas,
however, the question of a "civil right" within the meaning of Article
6, paragraph (1) (Art. 6-1); whereas the Commission finds that an
examination of the file in its present state does not give it the
information required for deciding this question; whereas, therefore,
it decides to invite the parties to appear before it, in accordance
with Rule 46 of the Rules of Procedure, in order to make oral
submissions on the admissibility of the applicant's above complaint;
whereas such submissions should, in particular, deal with the question
whether the proceedings concerned involved the determination of a
"civil right"; whereas, consequently, the Commission decides to adjourn
its examination of the remainder of the application;

Now therefore the Commission

1. Declares inadmissible:

- the applicant's complaints under Article 4 and 5 (Art. 4, 5) of the
Convention concerning his detention as a convicted person and pending
the retrial proceedings;

- the applicant's complaints under Article 6 (Art. 6) of the Convention
concerning the proceedings on his application for retrial;

- the applicant's complaints under Article 6, paragraphs (2) and (3)
(Art. 6-2, 6-3), of the Convention concerning the proceedings on his
application for compensation;

Adjourns its examination of the remainder of the application.