CEDH · CASELAW;REPORTS;ENG — 14 décembre 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    Application No. 11968/86     Helmut BÖHLER     against     AUSTRIA               REPORT OF THE COMMISSION   (adopted on 14 December 1988)         TABLE OF CONTENTS                                                                       Page   I.       INTRODUCTION         (paras. 1-12). ......................................       1           A.       The application                 (paras. 2-4). ...............................       1           B.       The proceedings                 (paras. 5-7). ...............................       1           C.       The present Report                 (paras. 8-12). ..............................       2     II.      ESTABLISHMENT OF THE FACTS         (paras. 13-33). .....................................       3           A.       The particular circumstances of the case                 (paras. 13-27)...............................       3           B.       Relevant domestic law                 (paras. 28-33)...............................       5     III.     SUBMISSIONS OF THE PARTIES         (paras. 34-60).......................................       8           A.       The applicant                 (paras. 34-48)...............................       8                   a.   Article 5 para. 3 of the Convention                     (paras. 34-40) ..........................       8                   b.   Article 6 para. 1 of the Convention                     (paras. 41-47) ..........................       9           B.       The Government                 (paras. 48-60) ..............................      11                   a.   Article 5 para. 3 of the Convention                     (paras. 48-51) ..........................      11                   b.   Article 6 para. 1 of the Convention                     (paras. 52-60) ..........................      11                                                                         Page     IV.      OPINION OF THE COMMISSION         (paras. 61-85) ......................................      14           A.       Points at issue                 (para. 61) ..................................      14           B.       Article 5 para. 3 of the Convention                 (paras. 62-71) ..............................      14                   a.   Period to be considered                     (paras. 63-67) ..........................      14                   b.   Reasonableness of the length of the                     applicant's detention                     (paras. 68-70) ..........................      15                   c.   Conclusion                     (para. 71) ..............................      15           C.       Article 6 para. 1 of the Convention                 (paras. 72-84) ..............................      15                   a.   Period to be considered                     (para. 73-74) ...........................      15                   b.   Reasonableness of the length of the                     proceedings                     (paras. 75-83) ..........................      16                   c.   Conclusion                     (para. 84) ..............................      17           D.       Recapitulation                 (para. 85) ..................................      17     DISSENTING OPINION OF MR. S. TRECHSEL, JOINED BY MESSRS. J.C. SOYER, H.G. SCHERMERS AND J. CAMPINOS AND MRS G.H. THUNE   .........................................      18       APPENDIX I:    HISTORY OF THE PROCEEDINGS ....................      21   APPENDIX II:   DECISION ON THE ADMISSIBILITY .................      22     I.     INTRODUCTION   1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application&_   2.       The applicant, born in 1940, is an Austrian citizen who before his detention in the present case lived in Innsbruck where he worked as an insurance salesman.   Before the Commission, he is represented by Dr.   G. Stanonik, a lawyer practising in Salzburg.           The application is directed against the Republic of Austria whose Government were represented by their Agent, Ambassador Helmut Türk, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   3.       The application relates to criminal proceedings instituted against the applicant on 1 July 1980.   On 16 November 1982 the Salzburg Regional Court (Landesgericht) convicted the applicant of fraud and of violations of the foreign exchange laws and sentenced him to eight years' imprisonment.   The written judgment was served on the applicant on 28 August 1985.   The applicant then filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung).   On 19 December 1985 the Supreme Court (Oberster Gerichtshof) reduced the applicant's sentence to six years' imprisonment.   4.       The applicant complains under Article 5 para. 3 of the Convention that he was detained on remand for five and a half years from 1 July 1980 until 19 December 1985.   Thus he was not tried within a reasonable time or released pending trial within the meaning of that provision.   The applicant also complains under Article 6 para. 1 of the Convention of the length of the court proceedings, in particular that he only received the written grounds of the judgment 33 months after it had been pronounced.   B.     The proceedings&_   5.       The application was introduced on 10 January 1986 and registered on 29 January 1986.           On 8 July 1986 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them to present before 17 October 1986 their observations in writing on the admissibility and merits of the application.   The Government's observations of 13 October 1986 were received on 15 October 1986. The applicant's undated reply was received on 1 December 1986.   6.       On 7 May 1987 the Commission declared the application admissible.   7.      After declaring the application admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 12 May 1987 and 27 April 1988.   In the light of the parties' reaction, the Commission now finds that there is no basis upon which a settlement can be effected.   C.       The present Report&S   8.       The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberation and votes, the following members being present:                  MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY   9.      The text of this Report was adopted on 14 December 1988 and is now transmitted to the Committee of Ministers of the Council of Europe in accordance with Article 31 para. 2 of the Convention.   10.     The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   11.       A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   12.       The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case&_   13.      On 1 July 1980 the applicant was arrested on suspicion of fraud and remanded in custody.   Criminal proceedings were instituted against the applicant and in 1982 he was tried before the Salzburg Regional Court.   The case file consisted of 13 volumes with more than 100 pages of expert opinions.   In addition, there were 30 volumes consisting of documentary evidence.   The trial (Hauptverhandlung) lasted five days, during which 30 witnesses were heard.   The minutes of the trial consisted of 357 pages.   14.      On 16 November 1982, after a hearing at which the applicant was present, the Court orally pronounced its judgment and mentioned the relevant reasons therefor.   In the judgment it convicted the applicant of various instances of fraud (Betrug), aggravated fraud (schwerer Betrug), and professional fraud (gewerbsmäßiger Betrug) in amounts varying between 10,000 and 1,000,000 AS as well as of violations of the foreign exchange laws.   The Court sentenced the applicant to eight years' imprisonment, making allowance for the period of detention on remand since 1 July 1980.   15.      The written judgment was served on the applicant on 28 August 1985.           With regard to the period after judgment was pronounced publicly on 16 November 1982 and the preparation of the written judgment, the Government have submitted a schedule of the workload of M, the judge responsible for the preparation of the written judgment, and of his Court Department No. 20.   16.      It appears from the schedule that, from 1 January 1982 until 31 July 1985, the Court Department No. 20 was overburdened in that the number of finished cases per year never reached the total number of new cases of the same year and of the unfinished business of the preceding year.   17.      Thus Judge M was responsible, from 29 November until 29 December 1982, alone or together with associate judges or lay judges, for 33 hearings, for instance on 22 December 1982 for nine hearings.   Similarly, in 1983 he was responsible for 124 hearings, in 1984 for 277 hearings and until 22 July 1985 for 151 hearings.   In 1984, Judge M had to bring to an end two jury trials and, from 1 January to 31 July 1985, one jury trial.   18.      The Government have also indicated the steps taken by the competent supervisory authority in order to obtain the written judgment.   Thus, as from the beginning of 1983, the supervisory administrative authorities were constantly taking measures in respect of Judge M in order to enable him to complete the written grounds of the judgment of the present case.   Disciplinary proceedings were instituted against him, and on 4 March 1984 the Linz Court of Appeal (Oberlandes gericht) as the disciplinary tribunal decided to impose on Judge M the administrative penalty of an admonition (Ermahnung) on account of the delays which had occurred with regard to the applicant's written judgment.   19.      When thereafter Judge M did not prepare the written judgment, he justified the delay with his workload as well as with personal problems, namely his father's death and heart surgery undertaken on his son.   On 4 June 1985, the supervisory panel (Personalsenat) of the Salzburg Regional Court decided not to allocate new cases to the judge in order to give him an opportunity to catch up on the backlog in judgments.   On 5 June 1985 the applicant filed a request for the written judgment.   New disciplinary proceedings were eventually instituted against the judge.   On 1 July 1986 the Linz Court of Appeal decided that he was to be barred from promotion for two years.   The judge appealed against this decision.   20.      While being detained on remand, the applicant filed an application for release on 19 May 1985, which was withdrawn by him on 4 June 1985 as he was unable to provide sufficient bail.   On 5 June 1985 he again applied for his release from detention on remand whereby he offered bail of 250,000.- AS.   He submitted that his detention was not justified in view of the fact that his wife and their child lived in Salzburg and as his education would enable him to find work.   His application was granted by the Review Chamber (Ratskammer) at the Salzburg Regional Court on 17 July 1985, which ordered his release on bail.   21.      The Review Chamber recalled that the judgment of the Salzburg Regional Court had not yet acquired legal force.   With reference to Section 180 of the Code of Criminal Procedure (Strafprozessordnung) it found, on the one hand, that the danger of repetition as a ground for detention on remand had been sufficiently reduced by the duration of the applicant's detention, now lasting five years.   On the other hand, danger of absconding had not become irrelevant.   Rather, as the applicant himself admitted, he had deposited bars of silver to the amount of approximately 10,000,000.- AS in a Zurich bank and he himself had been able during his detention on remand to organise the sale of 60 kilos of that silver.           The Review Chamber concluded that the applicant had connections with persons in other countries, thus giving rise to the suspicion that he would abscond to another country in view of the sentence of eight years imposed on him.   Nevertheless, this ground of a danger of absconding could be reduced by means of granting bail as the more lenient measure.   In view of the consequences of the offences and in order to be effective, the Review Chamber set the amount of bail at 2,000,000.- AS.   22.      The decision of the Review Chamber was confirmed by the Linz Court of Appeal on 14 August 1985.   However, as the applicant was unable to furnish the bail of 2 million AS ordered by the Review Chamber, he remained in custody.   23.      The written judgment of the Salzburg Regional Court was served upon the applicant on 28 August 1985.   24.      The judgment, which numbered 126 pages, mentioned in particular the 25 persons, residing in different towns in Austria, in respect of whom the applicant had fraudulently obtained on altogether 42 occasions a total of approximately 10 million AS. A substantial part of these monies had been transferred to the Federal Republic of Germany and Switzerland.   Thereby, the applicant had violated the Austrian foreign exchange laws on seven occasions to the amount of approximately 8,5 million AS.   The Court acquitted the applicant of three charges of fraud.   25.      According to the judgment, the applicant and his wife founded or acquired in 1979 various companies in Austria, Liechtenstein and Switzerland.   The applicant then acted as a financial adviser to various persons to whom he promised profitable investments bearing an interest of 17 % to 35 %.   Between autumn 1979 and the end of 1980 the applicant extricated from them considerable sums of money, which he used to finance his company and a business style which demonstrated that the companies were sound.   The Court's judgment then analysed in detail the single offences committed by the applicant.   26.      After the judgment had been pronounced the applicant filed a plea of nullity with the Supreme Court (Oberster Gerichtshof) in which he complained that during the proceedings his objections to an expert and his various applications for the taking of evidence had not been considered.   He also filed an appeal (Berufung) with the Supreme Court in which he complained about the sentence.   27.      On 14 November 1985 the Supreme Court dismissed the applicant's plea of nullity as being unfounded.   On 19 December 1985 the Supreme Court granted his appeal to the extent that it reduced the applicant's sentence from eight to six years.     B.       Relevant domestic law&S   28.      The offences of aggravated fraud - Section 147 para. 3 of the Austrian Penal Code (Strafgesetzbuch) - and of professional fraud involving aggravated fraud (Section 148) are punishable by imprisonment lasting between one and ten years.   29.      Detention on remand is ordered under Section 180 paras. 1 and 2 of the Austrian Code of Criminal Procedure (Strafprozessordnung) if the accused is seriously suspected of having committed a criminal offence and if there is a danger of absconding, collusion, or repetition.   According to para. 3 of Section 180, a danger of absconding is not to be assumed if the accused is suspected of a criminal offence not punishable by more than five years' imprisonment.   30.      According to Section 193 of the Code of Criminal Procedure, in the version in force until 1983, detention on remand could be extended under certain circumstances to a maximum of two years if the accused was suspected of having committed an offence threatened with imprisonment of at least ten years.   However, since 1983 para. 5 of Section 193 provides that this time-limit no longer applies once the trial has commenced, as long as there are other grounds of detention than only the danger of collusion.     31.      Section 397 of the Code of Criminal Procedure states, insofar as relevant to the present case:   <German>   "Jedes Strafurteil ist ungesäumt in Vollzug zu setzen, sobald feststeht, daß der Vollstreckung kein gesetzliches Hindernis und insbesondere kein rechtzeitig und von einem hierzu Berechtigten ergriffenes Rechtsmittel entgegensteht, dem das Gesetz aufschiebende Wirkung beimißt (§ 284 Abs. 3, § 294 Abs. 1 und § 344)."   <Translation>   "Every judgment must immediately be executed as soon as it is certain that there is no legal obstacle to execution, particularly no remedy which has been duly filed by a person entitled thereto and in respect of which the law provides for a suspensive effect (Sections 284 para. 3, 294 para. 1, and 344)."           The remedies employed by the applicant had such suspensive effect, his plea of nullity according to Section 284 para. 3 and his appeal according to Section 294 para. 1.   According to Section 284 para. 1 these remedies must be announced (anzumelden) within three days after the oral pronouncement of the judgment, whereupon their suspensive effect commences.   Thus, under Austrian law the applicant remained in detention on remand while his remedies were pending before the Supreme Court.   32.      Sections 257 to 270 of the Code of Criminal Procedure govern the judgment of the first instance Court, its pronouncement and the preparations of the written grounds.   Section 270 states, insofar as relevant for the present case:   <German>   "(1) Jedes Urteil muss binnen vierzehn Tagen vom Tage der Verkündung schriftlich ausgefertigt und vom Vorsitzenden sowie vom Schriftführer unterschrieben werden.   (2) Die Urteilsausfertigung muss enthalten:     ...   5.   die Entscheidungsgründe.   In diesen muss in gedrängter Darstellung, aber mit voller Bestimmtheit angegeben sein, welche Tatsachen und aus welchen Gründen der Gerichtshof sie als erwiesen oder als nicht erwiesen angenommen hat, von welchen Erwägungen er bei der Entscheidung der Rechtsfragen und bei Beseitigung der vorgebrachten Einwendungen geleitet wurde und, im Fall einer Verurteilung, welche Erschwerungs- und Milderungsumstände er gefunden hat."   <Translation>   "(1) The written reasons for every judgment shall be prepared within fourteen days from the date of the pronouncement and shall be signed by the president as well as the reporter.   (2)   The written reasons of the judgment shall contain:     ...   5.    the grounds for the decision.   Therein shall be mentioned in a compressed presentation, but with full precision, which facts are regarded as established, or not established, by the Court, and the reasons therefor;   the considerations which guided the Court when deciding the legal issues and when rejecting the objections made;   and, in the case of a conviction, which aggravating or mitigating circumstances the Court has found."           As regards in particular the time-limit stated in Section 270 para. 1, non-observance of that time-limit does not according to Austrian doctrine lead to the nullity of the judgment (see E. Foregger/E. Serini, Die österreichische Strafprozessordnung, Vienna 1982, p. 318 N. II).   33.      In respect of the remedies available against a judgment, Section 285 para. 1 states, insofar as it is relevant for the present case:   <German> "(1) Der Beschwerdeführer hat das Recht, binnen vierzehn Tagen nach der Anmeldung der Nichtigkeitsbeschwerde, wenn ihm eine Urteilsabschrift aber erst nach der Anmeldung des Rechtsmittels zugestellt wurde, binnen vierzehn Tagen nach der Zustellung eine Ausführung seiner Beschwerdegründe beim Gericht in zweifacher Ausfertigung zu überreichen..."   <Translation>   "(1) The applicant has the right to submit with the Court in duplicate the written reasons for his plea of nullity within fourteen days after he has filed his plea of nullity or, if the copy of the decision is served on him only after the remedy was filed, within fourteen days after the decision is served ..."     III.   SUBMISSIONS OF THE PARTIES   A.     The applicant&_           a.   Article 5 para. 3 of the Convention   34.      The applicant submits that despite his various applications to be released he was not tried within a reasonable time or released from detention pending trial within the meaning of Article 5 para. 3 of the Convention.   In particular, his detention on remand lasted from 1 July 1980 until 19 December 1985 when the judgment of the Regional Court acquired legal force.   The applicant contends that in this respect Section 193 of the Code of Criminal Procedure is so general that it contradicts the Convention.   In particular, until 1983 Section 193 permitted detention on remand indefinitely after a person had formally been indicted, and since 1983, it permits indefinite detention once the trial has begun.   35.      Article 5 para. 3 of the Convention is not intended, in combination with Article 5 para. 1 (c), to guarantee that detention on remand shall be set off against a sentence of imprisonment.   Its object is rather to limit restrictions on a person's freedom by detention on remand before being sentenced to imprisonment as provided for by domestic law, and, in any event, to ensure that this detention without a final sentence is not longer than necessary.   The concept of a "conviction" can accordingly only be understood within the meaning of this provision as a final, enforceable decision which finally determines the charge.   Article 5 para. 3 is therefore in no way concerned with whether the applicant will possibly at a later stage have to serve a sentence which is just as long or perhaps longer. This provision is also not concerned with whether the applicant suffered "damage".   Its object is rather to ensure that when the matter is not determined within a reasonable time the applicant has a right to be released from detention.   Of course, he may later receive a heavier sentence which he must duly serve.   36.      Only on the application of 17 July 1985 did the Review Chamber decide that the applicant should be released on bail.   This release was ordered more than two and a half years after the first instance judgment had been pronounced.   This period of time exceeded a reasonable time.   If it is argued that two years of detention on remand were perfectly normal in the instant case, this period had already been served a long time ago when judgment was given at first instance.   The applicant had to undergo a further two and a half years' detention on remand before being released on bail after judgment was given and in spite of the fact that the written judgment was not prepared.   That delay was unreasonable.   37.      Under Article 5 para. 3 of the Convention release may be conditioned by guarantees to appear for trial.   The decision of the Review Chamber of 17 July 1985 discloses that bail was required on account of the danger that the accused might abscond.   Appearance in court is no longer necessary at this stage of the proceedings.   The accused is free to decide whether he wants to appear in the proceedings concerning an appeal and a plea of nullity before the   Supreme Court.   Accordingly, bail can only apply to the execution of the sentence.   But this is not covered by Article 5 para. 3.   The latter also does not require an application for release.   This right must be granted by the State as a matter of course.   38.      The applicant submits that the length of his detention prevented him from applying in accordance with Section 46 of the Austrian Criminal Code for a reduction of his prison sentence on account of good conduct.   Thus he could only file his application after five and a half years of his sentence of altogether six years had elapsed.   In view of the fact that the original sentence of eight years could have been reduced by half, he in fact lost one and a half years of his life on account of the unjustifiable delay caused by the Regional Court.   39.      Doctrine and practice unanimously hold that Section 46, which provides for the conditional release from imprisonment, confers a right on the offender.   It is also no longer retrospectively possible to reconstruct what the decision on conditional release would have been, if it had been made earlier.   40.      The applicant finds it incompatible with the Convention that, under Austrian law, detention on remand may be continued without any limit when the trial has opened.   It is not enough to argue that Article 5 para. 3 of the Convention only provides protection until judgment is given at first instance.   Domestic legislation should provide the necessary guarantees, for instance that the accused is released, if the written judgment is not prepared within the period of two weeks specified in Section 270 of the Code of Criminal Procedure. This would also ensure that the judge prepares the written grounds within a reasonable time.           b.   Article 6 para. 1 of the Convention   41.      The applicant submits that the court proceedings in which he was involved were not concluded within a reasonable time within the meaning of Article 6 para. 1 of the Convention.   In particular, he did not, until 28 August 1985, receive the written grounds of the judgment of 16 November 1982, which were essential for the appeal proceedings. Yet, if the Regional Court had acted promptly he could have filed his memorial stating the grounds of his plea of nullity much earlier.   His appeal to the Supreme Court eventually succeeded.   42.      The applicant further refers to the rationale of Section 270 of the Code of Criminal Procedure (para. 32 above).   When the Court reaches its decision after deliberation, the judgment represents the opinion of the court.   The Court must by then have considered all the circumstances coming to light in the course of the proceedings in the case.   Further delay can therefore not be justified by the complexity of the case.   43.      The complexity of the case might justify a long trial and consequently a longer period of detention on remand up to the end of the trial.   In the present case, on 16 November 1982, when the judgment was given, the Court must therefore have been fully aware of the grounds.   In fact the judge concerned had nothing more to examine.   He must merely set down the grounds arrived at in the deliberations of the court.   Possibly he may be granted a few days in order to choose   suitable wording or include cross-references in the text.   But he cannot be given more time than what he requires for correcting the draft.   Any other solution would mean that the judge concerned produced the grounds of the judgment and that the other judges did not really participate in reaching the decision of the court.   44.      The applicant recalls that the period to be taken into account in assessing whether the length of the proceedings was reasonable within the meaning of Article 6 para. 1 runs up to the time when the judgment becomes final.   In the present case the time required was no longer reasonable, particularly since an appeal to the Supreme Court could only be filed after the written judgment had been prepared.   45.      As regards the case-load before Court Department No. 20, the number of new cases was in no way unusual or higher than in other departments.   Other judges have even more complicated cases to deal with, in which the preparation of the written grounds did not take so long.   46.      The measures taken by the authorities in the present case were inadequate and irrelevant.   Only in 1984 did the authorities find it necessary to impose a mild disciplinary sanction on Judge M for failing for almost two years to prepare the written judgment.   In 1985, no similar measures were taken.   In 1986, a disciplinary sanction was again pronounced against Judge M which was irrelevant for the present case.   47.      Austrian law does not provide for legislative measures as to how a judge should be forced to perform his duties.   However, the Government had at its disposal much more effective measures to remedy the situation.   For instance, Section 104 of the Judicial Service Act (Richterdienstgesetz) provides for the disciplinary sanctions of reprimand, cancelling increments, reduction of salary, transfer to another post without transfer allowances, retirement on reduced pension and dismissal.   Nevertheless, the Government only imposed the two mildest disciplinary sanctions, and only the sanction of a reprimand was imposed before the written grounds were prepared.   Under Section 51 of the Judicial Service Act, the staff senate of the competent court must prepare an official report every year on each judge's work.   In the reports on Judge M there is no mention between 1982 and 1985 that his work was unsatisfactory and that he was not even able to produce the written judgment which had already been pronounced.   In fact, the intake of new cases should have been stopped.   It would have been possible to transfer Judge M in the years 1983-1985 to another division and to employ him as an investigating judge, a function which involves much less work.     B.       The respondent Government&S           a.   Article 5 para. 3 of the Convention   48.      The Government point out that the applicant only once applied for release from detention on remand which was eventually allowed. Thus, after providing bail of 2 million AS, the applicant would have been released until the sentence became final.   The authorities cannot be blamed for the fact that the applicant was unable to provide bail and therefore had to remain in prison.   49.      Article 5 para. 3 of the Convention permits the interpretation that the period to be assessed under this provision ends with the pronouncement of the judgment of the court of first instance.   The need to have a written judgment cannot be inferred from the law. Moreover, according to the case-law of the European Court of Human Rights, the period relevant under Article 5 para. 3, which in the applicant's case commenced on 1 July 1980, ends with the release from pre-trial detention or the pronouncement of the judgment of the court of first instance, i.e. in the present case on 16 November 1982. This period cannot be considered unreasonably long in view of the complexity of the case, the necessity to question numerous persons within the framework of mutual legal assistance, the extent of the punishment involved, the strong suspicion of a criminal act and the existing reasons for arrest.   Up to the pronouncement of the judgment, the domestic judicial authorities dealt with the matter expeditiously. Therefore, the Convention has also not been violated in this respect.   50.      As regards Section 193 of the Code of Criminal Procedure, the Convention contains no requirement concerning an absolute time-limit for detention on remand.   A statutory regulation which nevertheless makes provision for such a time-limit cannot therefore be in contravention of Article 5 para. 3 of the Convention, as it makes the end of this time-limit dependent on a certain stage of the proceedings, i.e. after the trial has begun.   51.      Under Section 193 para. 2 of the Code of Criminal Procedure, the reasonableness of the length of the detention on remand must also be checked particularly under the aspect of the principle of proportionality namely as to whether or not the duration is reasonable in relation to the expected sentence.   In the case of obvious unreasonableness, detention must be terminated.   Before the judgment is given, the reasonableness and proportionality of detention on remand must be viewed in particular in the light of the penalty in question, the severity of the offence and the personal circumstances of the accused, namely his criminal record.   The assessment of the proportionality of detention on remand becomes more concrete once the court of first instance has given its judgment.   In the light of the above, it emerges that the applicant's detention on remand was not unreasonably long.           b. Article 6 para. 1 of the Convention   52.      According to the constant case-law of the Convention organs, the complexity of the case as well as the conduct of the applicant and of the competent public authorities must be examined in order to assess the reasonableness of the length of the proceedings.   53.      The present criminal case with its economic implications and connections with other countries was based on complex facts. Reference may be made to the great number of files, days of hearings and witnesses heard.   Moreover, at the time of pronouncement of judgment, it was not necessary for the judge to have prepared a draft version of the grounds.   When preparing the written judgment he must again study all files containing expert opinions, documentary evidence and the testimony of witnesses so as not to overlook any detail and to avoid any contradictions.   Finally, the judge must be able to submit a written judgment which will bear review by the appellate court.   54.      As to the applicant's conduct, it must be noted that he urged preparation of the written judgment only once, namely on 5 June 1985. He also did not file a hierarchical appeal (Aufsichtsbeschwerde) under Section 15 of the Code of Criminal Procedure.   55.      As regards the conduct of the competent authorities, the Government refer to the case-law of the Convention organs according to which delays may be justified if the courts were not able to cope with the sharply increasing number of cases (Eur.   Court H.R., Guincho judgment of 10 July 1984, Series A No. 81, p. 16 para. 38).   Such delays, however, would have to be kept as short as possible by the State.   Moreover, delays cannot entail responsibility of the State if the latter takes immediate and appropriate remedial action (cf.   Eur. Court H.R., judgment of Zimmermann and Steiner of 13 July 1983, Series A No. 66, p. 12 para. 29).   The delay in the present case resulted from the complexity of the case and the competent authorities took all possible measures to expedite the preparation of the written judgment, i.e. exemption of the judge concerned from new business; monitoring by the supervisory authority; disciplinary measures.   56.      Nevertheless, if one considers the constitutionally ensured principle of the independence of judges, guaranteed by the rules of irremovability and freedom from transfer, as well as the resulting principle of the fixed allocation of work, delays may occur in the interest of the certainty of law as long as, in exceptional cases, judges who do not satisfy the requirements which they are expected to meet may be transferred within the framework of disciplinary proceedings.   Another judge can then be appointed as head of the department.   57.      The Government do not accept that a violation of Section 270 para. 1 of the Code of Criminal Procedure implies a violation of Article 6 para. 1 of the Convention.   The Commission has stated that a violation of Section 270 para. 1 does not breach Article 6 para. 1 of the Convention if the written reasons for the judgment have not been available eight months after its pronouncement (See No. 4459/79, Dec. 3.4.71, Collection 38 p. 44).   58.      The issue whether or not the delays were to the detriment of the applicant must be judged by taking all circumstances into consideration.   Thus, at the hearing on 16 November 1982 the judgment was pronounced publicly and the pertinent reasons were mentioned.   The fact that the judgment, the contents of which were already known to the applicant, was not put into written form had the sole consequence that the Supreme Court was not able immediately to decide on the appeals lodged by the applicant.   Nevertheless, the applicant would in any case have had to serve the sentence.   Even if the first judge had   issued the written judgment immediately, the Supreme Court would still not have reduced the sentence to less than six years.   However, the applicant did not have to serve more than six years.   The delay in the preparation of the written reasons was not therefore detrimental to the applicant.   59.      Different criteria must be used for judging the reasonableness of the length of proceedings before and after pronouncement of the judgment.   Before the judgment is pronounced, the accused is under the strain of not knowing whether he will be found guilty and if so what sentence will be imposed on him.   The right to a speedy conclusion of the proceedings under Article 6 para. 1 of the Convention serves especially to keep this strain on the accused within justifiable limits.   While in the present case, the oral pronouncement of the judgment did not completely eliminate this uncertainty, it was considerably reduced.   The two and a half years required for the preparation of the written reasons of the judgment did not put as great a strain on the applicant as a similarly long delay in the preparatory proceedings would have posed for an accused who was detained pending trial.   60.      If the applicant submits that, after having served two-thirds of his sentence, he was not released on probation because no written reasons had been prepared for the judgment, he overlooks that a criminal has no right to claim parole.   His release on probation would not have been granted if the first judge had produced the written judgment immediately.   In the present case, the applicant filed a request for release on probation on 28 March 1986 which was rejected by two courts.   The latter held that the purpose of the punishment is to deter the offender from further wrongdoing.   IV.    OPINION OF THE COMMISSION     A.       Points at issue&S   61.      The points at issue are   a) whether there has been a violation of Article 5 para. 3 of the    Convention, in that the applicant's detention on remand exceeded a    reasonable time;   b) whether there has been a violation of Article 6 para. 1 of the    Convention, in that the criminal proceedings instituted against the    applicant exceeded a reasonable time.     B.       Article 5 para. 3 of the Convention&S   62.      Article 5 para. 3, insofar as relevant, provides as follows:   "Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article ... shall be entitled to trial within a reasonable time or to release pending trial.   Release may be conditioned by guarantees to appear for trial."           a.   Period to be considered   63.      The applicant was arrested on suspicion of fraud and remanded in custody on 1 July 1980.   On this date the period commenced which is to be considered under Article 5 para. 3 of the C