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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Ernst STOGMULLER v. AUSTRIA - 1602/62 [1964] ECHR 10 (01 October 1964) URL: http://www.bailii.org/eu/cases/ECHR/1964/1602_62.html Cite as: [1964] ECHR 10

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THE FACTS

Whereas the facts of the case as submitted by the Parties may be
summarised as follows:

1. The Applicant is an Austrian citizen, born in 1934, and at present
living in Vienna.

In 1955 the Applicant was employed as an inspector with the "Heimat"
Insurance Company in Vienna. While thus engaged, it appears that he
began both on his own account and for the Company to negotiate loans
to the company's clients and finally became a full-time and independent
financial agent.
On 10th January 1958 he founded the partnership business of Stögmüller
& Co. Ltd. in association with two other persons. The company, whose
registered office was in Linz, had an initial capital of 100,000,-
schillings. Its activities consisted of transactions relating to
property, including negotiating and advancing loans secured by landed
property or otherwise, the administration of property against
remuneration, the negotiation of settlements in and out of court, as
well as a house agency and commission business. The Company also
carried on the business of wholesale and retail trading in goods of all
kinds, including in particular, importing and exporting. All three
partners were registered as directors, the company's business being
able to be transacted by any two of them. In practice, Ernst
Stögmüller, who owned 80 % of the capital stock, managed the business
alone and, in August 1959, the Applicant became sole director and
transferred the registered office from Linz to Vienna. On 14th August
1961, the Applicant sold this company and since that date has not taken
part in any commercial activity.

2. As early as 1954 information against the Applicant was repeatedly
laid before the Public Prosecutor's Office in Vienna and elsewhere by
persons who claimed they had been the victims of fraudulent, and later
usurious, business methods practised by Stögmüller as an insurance
agent, a second-hand car dealer and financial agent. The criminal
proceedings instituted following these accusations were later suspended
in all but four cases or were concluded with the acquittal of the
Applicant.

In connection with a particular civil action brought by the "Heimat"
Insurance Company before the District Court of Ferlach, the Judge felt
obliged, in view of the disclosure of certain business practices of the
Applicant, to communicate the facts of the case to the Public
Prosecutor's Office. The consequent investigations resulted in the
Public Prosecutor's Office at Klagenfurt charging the Applicant with
fraud on five counts under Sections 197, 200, 201 (d), 203 and 199 of
the Penal Code.

On 9th July 1959, the proceedings relating to these charges were
transferred at Stögmüller's request to the Regional Court of Vienna
which acquitted him on 15th June 1960. A plea of nullity lodged by the
Public Prosecutor's Office was then examined by the Supreme Court
which, by a decision of 31st January 1961, upheld the Regional Court's
judgment on three of the counts and referred the case back to the Court
for review of two charges. On 28th May 1963, the latter convicted the
Applicant under Sections 197 and 199 (a) of the Penal Code before the
District Court of Vienna in respect of a charge of perjury committed
on 12th December 1957. He was sentenced to five months imprisonment but
was acquitted on the other charges. He then entered a plea of nullity
against his conviction, and this plea is still pending before the
Supreme Court.

3. On 5th December 1957, following the filing of numerous depositions,
the District Court of Wels opened preliminary enquiries concerning
further alleged offenses of fraud under Sections 197 and 200 of the
Penal Code and later of usury under Section 2 (4) of the Usury Act
(Wuchergesetz) and on 3rd March 1958 the Court remanded the Applicant
in custody under Section 175 (3) and 180 (1) of the Code of Criminal
Procedure. Following a request by Stögmüller on 15th March 1958, the
case was transferred to the Regional Court of Linz and, on 21st April
1958, the Applicant was released on conditions.

4. In June 1958, supplementary information, covering more than 2,000
pages, was filed with the Public Prosecutor's Office in Linz alleging
fraud, misappropriation of funds and profiteering by the Applicant and
also by a Dr. Ernst Standhartinger, a barrister. Stögmüller was
accused, in particular, of having from 1957 onwards made a practice of
demanding exorbitant security for loans from a large number of persons
who were apparently in difficult financial circumstances and further,
of having, alone or together with other persons, obtained money from
numerous other persons by fraudulent practices and of having
misappropriated capital entrusted to him.

The investigating magistrate at the Regional Court of Linz had just
begun extensive enquiries when the Applicant submitted a request on rh
October 1958 for the case to be transferred to the Regional Court of
Vienna. Since the persons accused with him had agreed to this, the case
was duly transferred.

After a study of the voluminous files, the examining magistrate in
Vienna decided to continue preliminary investigations into 31 charges
of misappropriation of funds, 21 charges of fraud and a further 21
charges under Sections 2 and 3 (4) of the Usury Act. Enquiries were
subsequently extended to 12 other accusations and suspended on 8 more.
On 10th February 1961, the Applicant, then at liberty, was informed on
these individual accusations.

5. When the Applicant failed to appear at the hearing fixed for  August
1961, police enquiries established that he had flown to Greece in an
aeroplane said to belong to his father. On his return, he was
re-arrested on thy August 1961 by a court order which had been made in
view particularly of strong suspicions that he had committed fresh
offenses after his release (Section 175, paragraph 1 (2) and (4) of the
Code of Criminal Procedure).
On thy October 1961, the Regional Court of Vienna, rejecting an appeal
lodged by the Applicant against his re-arrest, stated that official
enquiries had revealed that he had made several unauthorised journeys
within Austria and abroad and that, in accordance with Section 191 of
the Code of Criminal Procedure, his re-arrest had followed as the
natural consequence of his breach of the conditions upon which he had
been released. The Court further pointed out that, since Stögmüller had
in the meanwhile qualified as a pilot and had made frequent flights
abroad in an aeroplane belonging to his family, there was an obvious
danger that he might attempt to escape, particularly as the offenses
imputed to him were punishable by a prison sentence of five to ten
years.
As a further ground for rejecting the Applicant's appeal, the Court
referred to the danger of recidivism as the Applicant had, since his
release in 1958, allegedly committed more offenses of the character
referred 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 Vienna
dismissed Stögmüller's appeal against the decision of the Regional
Court, having expressly taken into consideration the danger of his
committing further offenses. The Court did not, however, support the
finding of the lower court that the Applicant might attempt to escape
from Austria.
A further request by the Applicant for his release was rejected by
decision of the investigating magistrate on 3rd January 1962 on the
same ground, and the subsequent appeal lodged by Dr. Ada Tammy, the
Applicant's counsel, was dismissed by the Regional Court of Vienna on
thy January 1962. The Court of Appeal of Vienna upheld this decision
on 14th March 1962.

6. Since the Applicant's attempts to secure his release were
unsuccessful, he then filed several applications and complaints. In an
application of 31st October 1962, addressed to the President of the
Regional Criminal Court of Vienna, he complained inter alia, that the
examining magistrate was deliberately protracting the proceedings,
which had already been pending for five years, and that during his 14
months' detention he had been heard on only three occasions. This
application was dismissed. The Applicant then lodged a disciplinary
complaint (Aufsichtsbeschwerde) which was also dismissed by the Court
of Appeal of Vienna in a decision of 23rd January 1963.

In a further application of 7th November 1962, the Applicant challenged
the Court of Appeal of Vienna, and the courts of first instance within
its jurisdiction on grounds of partiality, alleging that one of the
judges in Vienna was also involved in the case and that Dr. Ernst
Standhartinger, who was accused with him, was a close relative of a
Viennese judge. At the same time, he requested the transfer of his case
to the Regional Court of Salzburg.

The Supreme Court, which was required to pronounce only on the issue
of the alleged lack of impartiality of the Court of Appeal of Vienna,
dismissed the Applicant's motion on 6th February 1963, having found
that there were no grounds for fearing that the Court would allow
itself to be influenced by other than purely objective considerations.
On 27th February 1963, the Court of Appeal of Vienna rejected the
Applicant's motion in respect of the courts of first instance on the
grounds that the judges named by the Applicant had nothing to do with
the Applicant's case and were in no way associated with the judges
conducting it and that, moreover, Dr. Ernst Standhartinger was not a
close relative of the Viennese judge of the same name. The Applicant's
request for the transfer of his case was also rejected.

An application by the Applicant to the Constitutional Court submitting
that the proceedings against him had already continued for five years
and that, although he had been in custody for 18 months, there were
several matters on which he had not yet been heard, was dismissed by
a decision of the Constitutional Court on 27th March 1963 on the ground
that it was not competent to examine appeals against court judgments
or decisions or against the behaviour of judicial organs with regard
to jurisdiction.

7. On 26th August 1963 the Applicant was released on bail of 200,000
Schillings. The investigation against him is still being continued and
he has not yet been formally charged.

The submissions of the Parties

Whereas in his Application form, in his reply of 14th September 1963
and at the oral hearing on 1st October 1964, the Applicant alleges
violations of:

- Article 5, paragraph (1) (c) in that he was arrested and detained
without reasonable suspicion;
- Article 5, paragraph (3) in that the investigation against him did
not necessitate his detention for periods totalling 2 years and 7
weeks;
- Article 6, paragraph (1) in that he has not been brought to trial
within a reasonable time;
- Article 6, paragraph (1) in that the examining magistrate does not
carry out the investigation against him in an impartial manner;  -
Article 6, paragraph (3) in that the investigating judge has refused
to hear certain witnesses for the defence;

Whereas the Respondent Government has replied to these allegations in
its written observations of 28th August and 9th December 1963 and at
the oral hearing on 1st October 1964;

Whereas the submissions of the Parties on these various issues may be
summarised as follows:

In respect of the alleged violation of Article 5, paragraph (1) (c) of
the Convention

The Respondent Government submitted that the number of offenses imputed
to the Applicant and investigated by the examining magistrate, Dr.
Leonhard, gave rise to a strong suspicion that the Applicant was guilty
of offenses punishable by a prison sentence of five to ten years. His
arrest and detention were therefore justified in the interests of
justice. Furthermore, it could not be excluded that the Applicant
would, if remaining in liberty, have committed further offenses.

The Government also gave details as to the accusations which in 1961
and 1962 had warranted the rejection of the Applicant's two requests
for release. It further contested the Applicant's statement that he had
received permission to leave Austria and submitted that his failure to
appear at a hearing on 18th August 1961 constituted a breach of the
conditions upon which he was released in 1958. In conclusion, it
submitted that this allegation was manifestly ill-founded.

The Applicant submitted that his arrest and detention were not
justified under the Convention. A denunciation, which has been neither
proved nor even investigated, cannot be a basis of "a reasonable
suspicion" within the meaning of Article 5, paragraph (1) (c). He added
that he had been able to refute each accusation when called upon to
make a statement before the examining magistrate. The Austrian Courts
had attempted to justify his arrest and detention on the ground that
he might commit further offenses, but they had failed to take into
account that, prior to his second arrest on 25th August 1961, he had
sold his company and finally withdrawn from all commercial activities.
As to his failure to attend the hearing on 18th August 1961, he
submitted that, on receiving the summons, he asked his lawyer to
request an adjournment of the hearing to which the examining
magistrate, Dr. Leonhard, agreed. He returned from his journey to
Greece on 19th August 1961 and immediately reported his return to his
lawyer and to Dr. Leonhard. Nevertheless, the latter issued less than
a week later a warrant for the Applicant's arrest.

He further submitted that he had a standing permission to travel
abroad, the only restriction being that he left his address with his
lawyer.

In respect of the alleged violation of Article 5, paragraph (3) of the
Convention

The Respondent Government submitted that a danger existed in 1961 that
the Applicant might commit further offenses and that his detention was
then necessary. In 1963, that is two years after he had wound up his
affairs, no such danger existed and the Applicant could be released on
bail.

It further submitted that, according to the above provision of the
Convention, an arrested person shall be entitled to trial within a
reasonable time or to release pending trial. As the Applicant was
released on 26th August 1963, it concluded that the alternative
provision did not come into consideration and paragraph (3) had been
duly respected, and the Commission was barred from examining the length
of the period during which the Applicant had been detained.

In any event, the term "within a reasonable time" should be given a
flexible interpretation in the light of the particular circumstances
of each case. A detention of the Applicant for a prolonged period was
necessary in view of the extremely complex nature of the accusations
laid against him.

The Applicant submitted that the above provision had been violated in
that he had not been brought to trial within a reasonable delay or
released pending trial. The fact that he was released prior to trial,
namely on 26th August 1963, did not bar the Commission from examining
whether or not a period of detention totalling 2 years and 7 weeks was
excessive. He pointed that the reasons which finally led to his release
in 1963 already existed and ought to have been accepted in 1961;
indeed, prior to his arrest, he had on 14th August 1961 sold his
company and voluntarily detached himself from any commercial activity
which, in the eyes of the Prosecution, might have tempted him to commit
further offenses. In fact, the grounds on which his release was ordered
corresponded closely to those contained in his own requests for release
two years earlier.

During the two years which he had spent in prison pending trial, he had
been heard by the examining magistrate on 13 occasions only, namely,
on 26th August and 28th December 1961, 11th, 13th, 16th, 17th, 18th and
23rd July 1962, 29th May, 18th June, 5th, 7th and 9th July 1963. These
hearings related to only five accusations out of about 80 under
investigation.

During the year which has elapsed since his release he has been heard
on 15 accusations. This tends to show that his detention was entirely
superfluous and purposeless.

In respect of the alleged violation of Article 6, paragraph (1) of the
Convention in that the Applicant was not brought to trial within a
reasonable time.

The Respondent Government submitted that the accusations against the
Applicant were extraordinarily complex and difficult to investigate.
It was not contested that the preliminary examination had begun in 1957
and that it was difficult now, after almost seven years, to give any
precise information as to when this investigation could be completed.
It was, however, submitted that the term "reasonable time" should be
interpreted in relation to the special circumstance of each case. The
present case was extraordinary in that more than 80 different
transactions had to be carefully examined and these transactions were
of a particularly complicated factual and legal character and in that
the intransigent behaviour of the Applicant did not facilitate their
examination.

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 Stögmüller'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, Stögmüller
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 Stögmüller 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 Stögmüller'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 Stögmüller 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, Sørensen, 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.