: NEUMEISTER v. AUSTRIA - 1936/63 [1968] ECHR 1 (27 June 1968)



07-19-2009, 12:40 AM
In the "Neumeister"
case,

The European Court of Human Rights, sitting in accordance with the
provisions of Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms (hereinafter
referred to as "the Convention") and Rules 21, 22 and 23 of the Rules
of Court as a Chamber composed of the following Judges:

Mr. H. ROLIN, President
and MM. A. HOLMBÄCK,
G. BALLADORE PALLIERI,
H. MOSLER,
M. ZEKIA,
S. BILGE,
H. SCHIMA, ad hoc Judge

and also Mr. M.-A. EISSEN, Deputy Registrar,

decides as follows:

PROCEDURE

1. By a request dated 7 October 1966, the European Commission of
Human Rights (hereinafter called "the Commission") referred to the
Court the "Neumeister" case. On 11 October 1966 the Government of the
Republic of Austria (hereinafter called "the Government") also
referred to the Court the said case the origin of which lies in an
Application lodged with the Commission on 12 July 1963 by
Fritz Neumeister, an Austrian national, against the Republic of
Austria (Article 25 of the Convention) (art. 25).

The Commission's request, to which was attached the Report provided
for by Article 31 (art. 31) of the Convention, and the Application of
the Government were lodged with the Registry of the Court within the
period of three months laid down in Articles 32 (1) and 47
(art. 32-1, art. 47). They referred firstly to Articles 44 and 48
(art. 44, art. 48), and secondly to the Government's declaration
recognising the compulsory jurisdiction of the Court under Article 46
(art. 46) of the Convention.

2. On 7 November 1966, Mr. Ren Cassin, President of the Court, drew
by lot in the presence of the Deputy Registrar, the names of six of
the seven Judges called upon to sit in the Chamber, Mr. Alfred Verdross,
the elected Judge of Austrian nationality, being an ex officio member
under Article 43 (art. 43) of the Convention; the President also drew
by lot the names of three Substitute Judges.

3. On 22 November the President of the Chamber ascertained the views
of the Agent of the Government and of the Delegates of the Commission
on the procedure to be followed. By an Order of the same day, he
decided that the Government should file a memorial within a time-limit
expiring on 25 March 1967 and that, after having received the said
memorial, the Commission would be at liberty to file a memorial within
a time-limit to be fixed subsequently.

On 10 March 1967, the President of the Chamber extended the time
allowed to the Government until 1 May 1967. On the same date he ruled
that the Commission's memorial in reply should be filed by
1 September 1967 at the latest.

The Government's memorial reached the Registry on 27 April 1967, and
that of the Commission on 3 August 1967.

4. By an Order of 12 October 1967, the President of the Chamber
decided that the oral proceedings would open on 4 January 1968. Giving
effect to a request of the Government, the Chamber authorised the
Agent, counsel and advisors of the former, on 24 November 1967, to use
the German language in the oral proceedings, it being the
responsibility of the Government to ensure the interpretation into
French or English of their arguments or statements (Rule 27 (2) of the
Rules of Court).

On 18 December 1967, the Government submitted a request for the
postponement of the hearing. This request was not granted by the
President of the Chamber but the sudden indisposition of two Judges
caused him to issue an Order, on 4 January 1968 postponing the opening
of the hearing until 12 February 1968.

5. On 13 January 1968, the President of the Chamber instructed the
Registrar to invite the Government and the Commission to present
certain documents, which were added to the file on 23 January and
5 February 1968 respectively.

6. One judge and one substitute Judge having informed the President
of the Chamber that they were unable to attend the hearing, the
President of the Court, on 17 January 1968, drew by lot the names of
two Substitute Judges.

As Mr. Verdross was unable to attend the hearing, the Government, on
12 February 1968, appointed to sit on this case as ad hoc Judge,
Mr. Hans Schima, Emeritus Professor at the Faculty of Law of the
University of Vienna, and member of the Austrian Academy of Sciences.

7. Pursuant to the aforesaid Order of 4 January 1968, a public
hearing was held at Strasbourg, in the Human Rights Building,
on 12, 13 and 14 February 1968.

There appeared before the Court:

- For the Commission:

Mr. M. SØRENSEN, Principal Delegate, and
MM. C.T. EUSTATHIADES and J.E.S. FAWCETT, Delegates;

- for the Government:

Mr. E. NETTEL, Legationssekretär at the Federal Ministry of
Foreign Affairs, Agent, assisted by
Mr. W.P. PAHR, Ministerialsekretär at the Federal Chancellory, and
Mr. R. LINKE, Sektionsrat at the Federal Ministry of Justice,
Counsel.

The Court heard the statements and submissions of each of these
representatives.

On 13 February 1968, the Court asked the Agent of the Government and
the representatives of the Commission a number of questions, to which
they replied on 13 and 14 February 1968.

On 14 February 1968, the President of the Chamber declared the hearing
closed.

8. On 14 and 15 February 1968, the Court invited the Government and
the Commission to present a further series of documents, which were
subsequently added to the file.

9. After having deliberated in private the Court gave the present
judgment.

THE FACTS

1. The object of the request of the Commission and the Application of
the Government is that the Neumeister case should be referred to the
Court, so that the latter may decide whether or not the facts
indicate, on the part of the Republic of Austria, a violation of the
obligations incumbent upon it under Articles 5 (3) and (4) and 6 (1)
(art. 5-3, art. 5-4, art. 6-1) of the Convention.

2. The facts of the case, as they appear from the Report of the
Commission, the memorials, documents and evidence supplied, and the
oral statements of the respective representatives of the Commission
and the Government may be summarised as follows:

3. Mr. Fritz Neumeister, an Austrian citizen born on 19 May 1922, is
resident at Vienna where he was formerly the owner and director of a
large transport firm, the "Internationales Transportkontor" or
"ITEKA", which employed some two hundred persons.

4. On 11 August 1959, the Vienna Public Prosecution
(Staatsanwaltschaft) requested the Regional Criminal Court
(Landesgericht fr Strafsachen) of that city to open a preliminary
investigation (Voruntersuchung), together with their immediate arrest,
against five persons including Lothar Rafael, Herbert Huber and
Franz Schmuckerschlag, and an enquiry (Vorerhebungen) concerning
Fritz Neumeister and three other persons.

On the previous day, the Revenue Office of the First District of
Vienna had denounced (Anzeige) the parties in question before the
Public Prosecution; it suspected some of having defrauded the
exchequer by improperly obtaining, between the years 1952 and 1958,
"reimbursement" which was designed to assist exports
(Ausfuhrhändlervergtung and Ausfuhrvergtung) of more than
54.500,000 schillings in turnover tax (Umsatzsteuer), the others
- Neumeister in particular - of having been involved in these
transactions as accomplices (als Mitschuldige).

In Austria, an act of this kind constitutes not merely a simple
taxation offence but rather fraud (Betrug) within the meaning of
Section 197 of the Austrian Criminal Code. By the terms of
Section 200, fraud becomes a felony (Verbrechen) if the amount of loss
caused for the sum fraudulently obtained exceeds 1,500 schillings.
The punishment incurred is "severe imprisonment" of from five to ten
years if this amount exceeds 10,000 schillings, if the offender has
shown "exceptional audacity or cunning" or if he has made a habit of
defrauding. (Section 203). These two amounts have since been altered:
they are now 2,500 and 25,000 schillings respectively.

5. In conformity with the provisions of Austrian law (ständige
Geschäftsverteilung) the conduct of the investigation and of the
enquiry instigated by the Public Prosecution was automatically
assigned, on 17 August 1959, to the investigating Judge, Dr. Leonhard,
who had already, since 13 February 1959, been working on another large
case involving fraud, the Stögmller case.

07-19-2009, 12:41 AM
6. On 21 January 1960, Neumeister appeared for the first time as a
suspect ("Verdächtiger", in the Austrian sense of the word), before
the Investigating Judge. In the course of his interrogation, which
lasted for an hour and a quarter, Neumeister became aware of the
above-mentioned steps taken by the Public Prosecution; he protested
his innocence, a position from which, it would seem, he has never
since wavered.

7. At the request of the Vienna Public Prosecution
(22 February 1961), the Investigating Judge decided on
23 February 1961 to open a preliminary investigation concerning
Neumeister's activities and ordered that Neumeister be taken into
detention on remand (Untersuchungshaft).

In consequence Neumeister was, on the following day, placed in
detention on remand in connection with the case involving Rafael and
associates (24 a Vr 6101/59). At the same time he was notified of his
provisional release in a case involving customs frauds
(No. 6 b Vr 8622/60) in respect of which he had been detained for some
three weeks. This other case is not in issue before the European
Court of Human Rights; it ended with the acquittal of the eight
accused on 29 March 1963 before the Regional Criminal Court of Vienna,
this judgment being confirmed on 14 April 1964 by the Austrian Supreme
Court (Oberster Gerichtshof).

During his detention the applicant was interrogated as an accused
("Beschuldigter", in the Austrian sense of this word) on 27 February,
2 March, 18 to 21 April and 24 April 1961. From the sixty-seven pages
of minutes, it appears that the Investigating Judge informed him in
detail of the statements concerning him made by several co-accused,
including Franz Scherzer, Walter Vollmann (former director of the
Iteka branch at Salzburg), Leopold Brunner and Lothar Rafael. The
last named of these had fled abroad but had written a letter of more
than thirty pages to the Court in which he heavily implicated
Neumeister. The Applicant explained his conduct in detail; the
interrogation generally took place in the presence of an inspector of
taxes (Finanzoberrevisor), Mr. Besau.

8. On 12 May 1961, Neumeister was provisionally released on parole:
he gave the solemn undertaking (Gelöbnis) provided for by Section 191
of the Code of Criminal Procedure but was not required to deposit
security. The Public Prosecution unsuccessfully challenged this
decision before the Vienna Court of Appeal (Oberlandesgericht).

9. After his release, the Applicant resumed his professional
activities. In the course of the trial concerning the alleged customs
frauds (6 b Vr 8622/60) he had been obliged to sell the ITEKA company,
seemingly at an extremely low price - about 700,000 schillings payable
in forty-eight monthly instalments - but he established a small
transport company, the Scherzinger company, with three employees.

In July 1961 Neumeister visited Finland, with the authorisation of the
Investigating Judge, for a holiday with his wife and their three
children. At the beginning of February 1962 he made a trip to the
Saar for several days, again with the permission of this Judge. He
asserts that throughout the period, which lasted until his second
arrest (12 July 1962; para. 12 infra), he often visited the
Investigating Judge of his own free will.

10. Lothar Rafael was arrested at Paderborn (Federal Republic of
Germany) on 22 June 1961 and was extradited to Austria on
21 December 1961, the Minister of Justice of North-Rhine Westphalia
having acceded to the request of the Austrian authorities for Rafael's
extradition.

In January 1962, lengthy interrogations of Rafael were conducted by
the Vienna Economic Police (Wirtschaftspolizei), during which the
former levelled grave accusations against Neumeister.

11. Neumeister informed the Investigating Judge in the Spring of 1962
that he wished to visit Finland again to spend a holiday with his
family during the month of July. The Investigating Judge raised no
objections at that time. He is said later to have warned the
Applicant that he would probably be confronted with Rafael in June but
that it would in no way be necessary for him to give up his plans for
a holiday abroad.

On 3rd, 4th, 5th and 6th July 1962, Neumeister was interrogated by the
Investigating Judge in the presence of the inspector of taxes,
Mr. Besau. On being informed of the statements relating to him made
by various witnesses and accused, in particular those made by Rafael
in January 1962, he strenuously contested them. Fifty pages of
minutes were noted on this occasion.

The confrontation between Neumeister and Rafael took place before the
Vienna Economic Police on 10 and 11 July 1962. It appears from the
twenty-two pages of minutes that Neumeister persisted in his denials.

On the morning of 12 July, the Investigating Judge informed Neumeister
that his departure for Finland, planned for 15 July, met with the
opposition of the Public Prosecution. When heard as a witness, on
7 July 1965, by a Sub-Commission of the European Commission of Human
Rights, he gave the following fuller particulars on this point:

"What I am going to say now is rather more difficult for me. My own
intuition convinced me that Mr. Neumeister would come back from his
trip to Finland. Mr. President, members of the Commission, you know
that a judge cannot let himself be ruled only by intuition; he must be
guided solely by the law. Since no treaty on judicial assistance or
extradition exists as such between Austria and Finland, the law
obliged me not to yield to my intuition that Neumeister would return.
I know that I said to Mr. Neumeister then: 'My feeling tells me that
you will come back; but I cannot personally give you permission
without the approval of the prosecuting authority'. This approval was
then refused."

The Applicant, for his part, alleged before the Sub-Commission that
the Investigating Judge had given him permission to go to Finland
despite the wish of the Public Prosecution that he should not.

12. Be this as it may, on the same day, 12 July 1961, at the request
of the Public Prosecution, the Investigating Judge ordered
Neumeister's arrest.

The warrant (Haftbefehl) indicated first that Neumeister was suspected
of having committed, between 1952 and 1957 and in consort with
Lothar Rafael and other suspects, a series of fraudulent transactions
which had caused the State a loss of some ten million schillings. It
added that Neumeister, being fully aware of the charges assembled
against him since his release (12 May 1961), must anticipate a heavy
punishment; that his former employee, Walter Vollmann, for whom the
results of the investigation had been less heavily incriminating, had
nevertheless evaded prosecution by absconding; that the recent
interrogations of the Applicant and his confrontation with Rafael had
shown to him beyond any doubt that he would now be obliged to
relinquish his attitude of total denial; that he intended to take his
holidays abroad and that the withdrawal of his passport would not have
offered an adequate safeguard, the possession of this document no
longer being necessary for the crossing of certain frontiers.

From these various circumstances the warrant deduced that there
existed, in the case, a danger of flight (Fluchtgefahr), within the
meaning of Section 175 (1) (2) of the Code of Criminal Procedure.

07-19-2009, 12:41 AM
Neumeister was arrested on the afternoon of 12 July 1962 near to his
office. He immediately requested the elder of his daughters,
Maria Neumeister, to cancel by telegram the tickets which he had
booked for the crossing of the Baltic. He stated to the police
officers who were sent to take him into custody that it had been his
intention to visit the Public Prosecutor's Office the following day
with a view to seeking authorisation for his departure for Finland on
Monday, 16 July.

On 13 July 1962 Neumeister appeared for a few moments before the
Investigating Judge who informed him that he was being placed in
detention on remand (Section 176 (1) of the Code of Criminal
Procedure).

13. On 23 July 1962, the applicant lodged his first appeal against
the order of arrest of 12 July 1962. Emphasising that his firm, his
home and his family were in Vienna, he stated that there were no
grounds for believing in the reality of a danger of flight and that if
he had wished to abscond he could easily have done so before.

The Judges' Chamber (Ratskammer) of the Regional Criminal Court of
Vienna dismissed the appeal on 31 July 1962 for reasons similar to
those set out in the order in dispute. In particular it laid great
weight on the statements of Rafael which, in its opinion, had
definitely worsened Neumeister's position.

The Applicant challenged this decision on 4 August 1962. He
maintained that Section 175 (1) (2) of the Code of Criminal Procedure
required a "danger of flight" and not merely a "possibility of
flight", that the presence of such a danger must be determined in the
light of concrete facts and that the possibility of a heavy sentence
was not a sufficient ground to assume danger of flight. It referred
to a judgment of the Constitutional Court (Verfassungsgerichtshof) of
8 March 1961 (Official Collection of the Decisions of this Court,
1961, pages 80-82).

The Court of Appeal (Oberlandesgericht) of Vienna dismissed the appeal
(Beschwerde) on 10 September 1962. While endorsing the reasoning of
the Judges' Chamber, it added that Neumeister knew perfectly well that
the charges weighing upon him had become more serious after
12 May 1961, that he must expect a heavy sentence in view of the
enormity of the loss caused, and that according to a police report of
12 July 1962 he had carried out preparations for a journey abroad and
had not abandoned them although the competent Investigating Judge had
expressly refused the necessary authorisation. In these circumstances
the Court was of the opinion that a danger of flight must be deemed to
exist.

14. Neumeister filed a second request for provisional release on
26 October 1962. While once again endeavouring to prove the absence
of a danger of flight, he offered for the first time, as a subsidiary
request, a bank guarantee of 200,000 or, at the most,
250,000 schillings (Section 192 of the Code of Criminal Procedure).

The Judges' Chamber rejected the request on 27 December 1962.
Recalling that Neumeister faced a punishment of from five to ten
years' severe imprisonment (Section 203 of the Criminal Code) and that
he was answerable for a loss of about 6,750,000 schillings, it took
the view that the deposit of security would not be sufficient to
dispel the danger of flight and that it was therefore unnecessary to
examine the amount of the security proposed.

Neumeister challenged this decision on 15 January 1963. In addition
to the arguments expounded in his request of 23 July 1962 and in his
appeal of 4 August 1962, he pointed out:

- that the amount of the loss wrongfully attributed to him in his
view, had decreased considerably, from more than forty million
schillings (24 February 1961) to a little more than eleven and a half
million (12 May 1961) and was later to fall to 6,748,510 schillings
(decision of 27 December 1962);

- that certain persons detained in connection with other more
important cases had recovered their freedom against the deposit of
security;

- that he had never sought to abscond, for instance between his
release (12 May 1961) and his second arrest (12 July 1962), and, more
especially, by taking advantage of his stay in Finland;

- that only a few hours had elapsed between his appearance before the
Investigating Judge, on the morning of 12 July 1962 and his arrest;

- that this brief interval of time had not left him any real
possibility of annulling the preparations for his journey,
preparations which in any case he did not wish to forgo without
attempting one last approach to the Public Prosecution;

- that he had already undergone more than nine months' detention on
remand (24 February 1961-12 May 1961 and 12 July 1962-15 January 1963),
another factor which, in his opinion, argued against the danger of
flight;

- that all his professional and family interests were centred around
Vienna where, moreover, his wife had just opened a ladies' ready-made
dress shop.

The Court of Appeal of Vienna rejected the appeal on 19 February 1963.
Referring to its decision of 10 September 1962, it observed that the
situation had not changed in a way favourable to Neumeister since
then. It was true that the amount of loss attributed to him had
diminished, but this sum did not include that for which he might be
held responsible in a case concerning the sham export of machines
(Kreisverkehr der Textilien der Firma Benistex). Moreover, it had not
decreased to such a point as to be of decisive influence on the
sentence which Neumeister would have to anticipate in the event of
conviction. From this the Court concluded that the danger of flight
remained so great that even the possible supplying of guarantees could
not be considered (indiskutabel ist) and that such guarantees could in
no way eliminate this danger.

15. Four weeks earlier, more precisely on 21 January 1963, the
Investigating Judge had proceeded to another confrontation between
Rafael and Neumeister who had substantially confirmed their respective
statements of 10 and 11 July 1962. According to the Applicant the
confrontation lasted for about a quarter of an hour. A page and a
half of minutes were taken on this occasion.

16. On 12 July 1963, the same day as that on which he lodged his
application with the European Commission of Human Rights, Neumeister
filed a third request for provisional release to which he added a
supplement on 16 July; he pledged himself to make the solemn
undertaking (Gelöbnis) laid down by Section 191 of the Code of
Criminal Procedure and once again offered to provide, if need be, a
bank guarantee of 200,000 or 250,000 schillings. While reiterating
his earlier arguments, he observed:

- that between his release (12 May 1961) and his second arrest
(12 July 1962), he had always held himself at the disposition of the
Investigating Judge, had presented himself of his own free will before
the latter on five or six occasions to obtain information concerning
the progress of the investigation and had informed him as far back as
March 1962 of his plan to make a journey to Finland;

- that the Austrian railways had authorised him to construct near the
Vienna east railway station, a warehouse worth one and a half
million schillings, a project which he had been unable to accomplish
because of his imprisonment;

- that since the imprisonment no new charge had been uncovered against
him;

- that Lothar Rafael, having made a number of confessions
(Geständiger), was seeking to improve his own lot by casting his guilt
onto others and that his statements were completely uncreditworthy;

- that after more than one year of detention on remand, the assumption
of there existing a danger of flight was no longer plausible.

The Investigating Judge rejected the request of 23 July 1963. He was
of the opinion that the grounds stated in the decisions of
31 July 1962, 10 September 1962, 27 December 1962 and 19 February 1963
retained their relevance and that the documents in the file in
substance corroborated Rafael's accusations against Neumeister.

07-19-2009, 12:42 AM
The latter then lodged with the Judge's Chamber of the Regional
Criminal Court of Vienna, on 5 August 1963, an appeal in which he
restated many of the arguments summarised above to which he added
others, in particular the following:

- considering the size and complexity of the case, the investigation
and the subsequent proceedings would seem to be of considerable length
with the consequence that the length of the detention on remand,
already greater than fourteen months, was in danger of exceeding that
of the possible sentence, if remedial measures were not speedily
taken;

- the Investigating Judge had failed to answer several of Neumeister's
arguments and to specify the documents which seemed to him to support
Rafael's statements, which were in any case most likely to be
withdrawn sooner or later;

- the same judge had been in error in minimising the importance of the
reduction of the loss attributed to Neumeister, a reduction which
might very well continue in the future;

- he had not based his decision on facts, but merely on presumptions
concerning the effects of Rafael's assertions on Neumeister's state of
mind (Seelenzustand).

Neumeister further emphasised:

- that he was prepared to deposit with the court his identity papers
and his passport;

- that he had no means whatsoever of supporting his family abroad;

- that in any case flight would be senseless for a man of his age, all
the more so since, in the case of his being extradited, he ran the
risk of not benefiting from the period of his detention on remand
being calculated as part of his possible sentence (allusion to
Section 55 (a) in fine of the Criminal Code).

The Judges' Chamber dismissed the appeal on 8 August 1963. Referring
to the decision which was being attacked and to those which had
preceded it, in substance it observed:

- that Rafael's statements were confirmed by a number of factors
(originals of letters, accountable receipts, statements of account,
witnesses' testimony, etc.);

- that the confrontation between Rafael and Neumeister in July 1962
had considerably worsened the latter's position and that the
Investigating Judge was correct in attaching importance to the effects
which it could not fail to have upon the morale of the Applicant;

- that, in these circumstances, the possible supplying of guarantees
could not be considered (indiskutabel ist) and could in no way
eliminate the danger of flight.

On 20 August 1963, Neumeister lodged an appeal against this decision
with the Vienna Court of Appeal. His complaints were substantially
the same as those which he had formulated on 5 August 1963. He also
charged the Judges' Chamber with not having specified the contents of
the documents supposed to corroborate Rafael's accusations, with
having ignored the question of whether he, Neumeister, was aware of
these documents, and with having overlooked the fact that more than
six months had passed since the last decision of the Court of Appeal
(19 February 1963). He also pointed out that he could easily have
absconded, had he so wished, in the interval between his confrontation
with Rafael and his arrest.

The Court of Appeal was not called upon to decide the question,
however: Neumeister withdrew his appeal on 11 September 1963 without
giving any reasons for so doing.

17. On 16 September 1963, Neumeister's elder daughter filed with the
Ministry of Justice a petition which sought her father's release; she
offered security of one million schillings.

The Vienna Economic Police addressed to the Regional Criminal Court,
on 13 November 1963, a confidential report from which it appeared that
Maria Neumeister had unsuccessfully sought to obtain part of that sum
from a former client of the Iteka and Scherzinger firms.

18. Some days earlier - on 6 November 1963, two days after the
closing of the preliminary investigation (paragraphs 19 and 20 infra) -
Dr. Michael Stern, attorney, had made, on Neumeister's behalf, a
fourth request for provisional release. In it, he briefly repeated
the arguments developed in the preceding requests, emphasised that the
period during which the Applicant had been held on remand was already
almost twenty months, and suggested a bank guarantee of
one million schillings.

In the course of the proceedings before the Commission, Neumeister
stated that this last offer was made against his wishes as he was not,
at that time, in a position to raise a guarantee for such a large sum.
By a letter of 14 April 1964, Dr. Stern confirmed that in this matter
he had acted on his own initiative. Before the Commission, the
Government's representatives observed that the offer was binding on
Neumeister and that the competent courts had no reason to believe that
it did not express Neumeister's own wishes.

The Investigating Judge rejected the request on 5 December 1963.
Referring to the decisions of 31 July 1962, 10 September 1962,
27 December 1962, 19 February 1963 and 8 August 1963, he held that the
Applicant had failed to bring forward any facts or arguments which
could justify his release.

Neumeister attacked this decision on 13 December 1963. He once more
denied that any danger of flight existed; in his view the Regional
Criminal Court of Vienna and the Vienna Court of Appeal had never
evaluated correctly the facts which were relevant to this point, had
based themselves on vague presumptions rather than solid proof and had
mistakenly attached decisive importance to the enormous loss allegedly
caused to the State. He complained in particular that the Regional
Criminal Court had failed, in its decision of 5 December, to take into
account the length of the detention on remand which he had already
undergone. In conclusion, the appeal repeated the offer of a bank
guarantee of one million schillings.

The Judges' Chamber of the Regional Criminal Court of Vienna allowed
the appeal on 8 January 1964. It recognised that the Applicant's
arguments carried a certain weight: recalling that Neumeister faced a
sentence of five to ten years' severe imprisonment, it observed that
it was uncertain as to whether he would benefit from the law providing
for cases involving extenuating circumstances (ausserordentliches
Milderungsrecht, Section 265 (a) of the Code of Criminal Procedure)
but that the length of detention on remand would, in all probability,
be deducted from the sentence in the event of a conviction
(Section 55 (a) of the Criminal Code) and that the inducement to flee
was thereby considerably lessened (wesentlich verringert). However it
considered that a guarantee of one million schillings was not
sufficient to eliminate the danger of flight. On this point it
emphasised that Section 192 of the Code of Criminal Procedure
stipulates that the amount of bail depends not only on the
circumstances of the detainee and on the financial situation of the
person providing the security, but also on the consequences of the
offence. For these reasons, the Judges' Chamber ordered Neumeister's
provisional release against security of two million schillings (either
in cash or in the form of a bank guarantee) and the voluntary deposit
(freiwillige Hinterlegung) of his passport with the Court.

On 21 January 1964, Dr. Stern lodged, on behalf of Neumeister, an
appeal designed to reduce the amount of security stipulated to one
million schillings. The substance of his argument was that under
Section 192 of the Code of Criminal Procedure, the consequences of an
offence should be taken into consideration only after due allowance
had been made for the circumstances of the detainee and the financial
situation of the guarantor. From this he concluded that in no case
should the courts demand a guarantee in excess of the means of the
Applicant (Gesuchssteller), with the result that they might, if they
so wished, prevent provisional release in a case where the loss was
substantial.

The decision in dispute was partially altered by that of
4 February 1964. After deciding that the appeal concerned solely the
amount of the security required, the Vienna Court of Appeal came to
the same conclusion as the Judges' Chamber, to wit that a sum of one
million schillings was too small, regard being had to the loss
entailed by the acts in respect of which Neumeister was accused. It
added that the Applicant most probably possessed far greater assets
than the amount offered as bail, thanks to the profit he had made from
these same acts. It also observed that he had not specifically
claimed that his means would be exhausted by his having to give bail
of one million schillings. The Court stated however that it did not
have the necessary documents or information available to enable it to
consider the amount of bail fixed by the Judges' Chamber. It therefore
remitted the case to the Judges' Chamber emphasising that it was
incumbent upon the latter, in the light of a detailed examination of
Neumeister's circumstances and of the financial situation of the
guarantors he could name to fix the bail between the limits of one and
two million schillings.

In a report dated 16 March 1964, drawn up at the request of the
Judges' Chamber, the Economic Police of Vienna expressed the opinion
that Neumeister was quite unable to obtain two million schillings.
This opinion was based on a number of documents from which it appeared
that the Scherzinger firm was hardly in a healthy financial position
and on the fact that Maria Neumeister stated that she could procure a
guarantee of five hundred thousand schillings.

The Judges' Chamber of the Regional Criminal Court of Vienna reached
its decision on 31 March 1964, that is, two weeks after the preferment
of the indictment (paragraphs 19 and 21 infra). Besides mentioning
the report of the Economic Police, it referred to a letter written by
Neumeister dated 25 February 1964, according to which a person who
wished to remain anonymous had agreed to provide security of one
million two hundred and fifty thousand schillings. After adding
together this sum and the five hundred thousand schillings offered by
Maria Neumeister, the Judges' Chamber reduced the amount of security
required of the Applicant to one million seven hundred and fifty
thousand schillings.

In an appeal dated 20 April 1964, Neumeister requested that the sum
should be reduced to one million two hundred and fifty thousand
schillings; he maintained that the offer made by his daughter was
included within that of the guarantor who did not wish to disclose his
identity.

The Vienna Court of Appeal dismissed the appeal on 20 May 1964. It
was of the opinion that the Judges' Chamber had complied with the
decision of 4 February and that the consequences of the offence were
of fundamental importance in the application of Section 192 of the
Code of Criminal Procedure.

19. Meanwhile Judge Leonhard had, on 4 November 1963, announced the
conclusion of the preliminary investigation and had sent the file to
the Public Prosecution (Sections 111-112 of the Code of Criminal
Procedure). The file consisted of twenty-one volumes each of about
five hundred pages, as well as a considerable number of other
documents. On 17 March 1964, the Public Prosecution of Vienna had,
for its part, completed the indictment (Anklageschrift) of which
Neumeister had been notified on 26 March (Sections 207 and 208 of the
Code of Criminal Procedure).

20. In the execution of his task, the Investigating Judge had been
aided by the Economic Police of Vienna, by the taxation department
(Inspector Besau), by the Austrian railways and by the postal service
administration; nevertheless, he had still encountered considerable
difficulties.

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Four of the principal accused, named Lothar Rafael, Herbert Huber,
Franz Schmuckerschlag and Walter Vollmann, had fled abroad, the first
three at the outset of the enquiries and the last-named after being
provisionally released on parole. After rather long proceedings, the
Austrian authorities had obtained Rafael's extradition
(21 December 1961) from the Federal Republic of Germany, and Huber's
(27 September 1962) from Switzerland. The Federal Republic of Germany
had, however, refused to grant the extradition of Schmuckerschlag as
he possessed German, as well as Austrian, nationality. Vollmann has
not, up to the present time, been traced.

To this were added a number of difficulties inherent in the nature,
the size and the complexity of the acts complained of. At its outset,
the investigation concerned twenty-two persons and twenty-two counts.
The prosecution was required to prove, among other things, that the
documents concerning the purchase of goods had been falsified, that
the value of the exports had been overstated with fraudulent intent,
that the recipient firms abroad were either non-existent or ignorant
of the whole affair and that the exporters had deposited the proceeds
of the sales in Switzerland or Liechtenstein. To achieve this aim it
had been necessary to reconstruct many business operations which had
taken place over a period of several years, to check the routes
followed by one hundred and fifty or one hundred and sixty railway
trucks, to study a large number of Revenue Office files, to hear
dozens of witnesses, some of whom had to be examined again after
Rafael's extradition, etc. Many of the witnesses lived abroad, for
example in the Netherlands, Italy, the United States, Canada, Latin
America, Africa and the Near East. The Republic of Austria had
therefore been obliged to have recourse to the services of Interpol or
to invoke the accords providing for mutual legal assistance which she
had concluded with States such as the Netherlands, the Federal
Republic of Germany, Italy, Switzerland and Liechtenstein. The
enquiries conducted in the Netherlands, the Federal Republic of
Germany and in Switzerland had in part taken place in the presence of
Austrian officials and especially, as regards those in Switzerland, in
the presence of Judge Leonhard, the Investigating Judge. Delays of
from six to sixteen months had occurred between the sending of
requests for legal assistance and the receipt of the results of the
investigations which had taken place in the Netherlands, the Federal
Republic of Germany, Italy and Switzerland. At the time of the
closing of the investigation the request addressed to Switzerland
remained pending on one point, with regard to which no positive result
was, in the end, obtained, as the Swiss authorities were of the view
(September 1964) that the professional duty of secrecy imposed on the
Zurich bankers in question conflicted with the disclosure of the
information sought. Liechtenstein's reply was received in Austria
only in June 1964.

Firms under Soviet administration were also involved, especially at
the beginning of the investigation: however, it was impossible to
obtain documents from the Soviet Armed Forces Bank through which
settlements had been effected.

The course of the investigation seems to have been slowed down by the
refusal of one of the accused - Herbert Huber - to make any statement
whatsoever before the Investigating Judge.

On the other hand, the proceedings relating to certain facts or
accused had been severed by reason of their secondary importance
(Section 57 (1) of the Code of Criminal Procedure); these seem to have
been later abandoned (Section 34 (2) of the same code). At the time
of the closure of the preliminary investigation, the number of accused
in the case did not exceed ten.

After 21 January 1963, the date of his last confrontation with Rafael,
Neumeister was not heard again by the Investigating Judge who, during
the same period, interrogated Rafael twenty-eight times (272 pages of
minutes) and five other accused seventeen times in all (119 pages of
minutes). According to the minutes of the confrontation of
21 January 1963, another confrontation was planned. It did not take
place, however; in the Applicant's opinion, it was Lothar Rafael's
refusal to participate which prevented this intention being realised.

21. The indictment of 17 March 1964 was 219 pages long and concerned
ten persons, in the following order: Lothar Rafael, Herbert Huber,
Franz Scherzer, Fritz Neumeister, Iwan Ackermann, Leopold Brunner,
Walter Vollmann, Hermann Fuchshuber, Helmut Dachs and Rudolf Grömmer;
it was in no way concerned with the "Kreisverkehr der Textilien der
Firma Benistex" case which was the object of separate proceedings
(paragraph 22 infra).

For his part, Neumeister was accused of aggravated fraud
(Sections 197, 200, 201 (a) and (d) and 203 of the Criminal Code) in
ten groups of transactions relating to very different items: toilet
soap, tools (cutters and welding bars), ladies' clothing (nylon
stockings, skirts, blouses, etc.), gym shoes, leather and velvet
goods, indoor lamps and running gear. The amount of loss for which he
was called upon to answer exceeded 5,200,000 schillings. The loss
attributed to the Applicant was the fourth highest of the accused,
being less than that alleged to be caused by Rafael (more than
35,100,000 schillings), Vollmann (about 31,900,000 schillings), and
Huber (about 31,800,000 schillings), but more than that caused by
Scherzer (more than 1,400,000 schillings), Brunner (more than
1,250,000 schillings), Dachs (more than 1,100,000 schillings),
Ackermann and Grommer (about 200,000 schillings). Some of the
dealings did not concern him at all. This was the case, mainly with a
large operation involving the export of textiles in which only Rafael,
Huber and Vollmann were implicated (more than 25,700,000 schillings,
pages 101-170 of the indictment).

07-19-2009, 12:43 AM
The Public Prosecution requested, inter alia, the opening of the trial
before the Regional Criminal Court of Vienna, the calling of
thirty-five witnesses and the reading of the affidavits of fifty-seven
more.

22. On 3 June 1964, the Vienna Public Prosecution informed the
Judges' Chamber of the Regional Criminal Court that it was
provisionally discontinuing the proceedings against Neumeister in the
"Kreisverkehr der Textilien der Firma Benistex" case, although
reserving the right to resume them at a later date (Section 34 (2),
paragraph (1), of the Code of Criminal Procedure). At the time of the
laying of the indictment, the Public Prosecution had prevailed upon
the Court to sever these proceedings which had subsequently been dealt
with separately (26 d VR 2407/64).

On the same day, the Judges' Chamber, stating that the total loss
imputed to Neumeister had been reduced by more than four million
schillings, decided to reduce to one million schillings - either in
cash or in the form of a banker's guarantee - the amount of security
required for the release of the Applicant.

On 13 August 1964, Neumeister informed the Judges' Chamber that his
daughter, Maria Neumeister and another named person were prepared to
stand surety for him (Brgen), the former putting up
850,000 schillings and the latter 150,000. The persons concerned
confirmed this on the following day. After carrying out a check on
their solvency (Tauglichkeit), the Judges' Chamber accepted their
offer on 16 September 1964. Some hours later the Applicant made the
solemn undertaking provided for by Section 191 of the Code of Criminal
Procedure, deposited his passport with the Court in conformity with
the decision of 8 January 1964, which, on this point, was still in
force, and was set at liberty.

23. The various decisions concerning Neumeister's detention on remand
were all reached in accordance with Sections 113 (2) (first instance)
and 114 (2) (appeal) of the Code of Criminal Procedure, at the end of
a hearing not open to the public in the course of which the Public
Prosecution was heard in the absence of the Applicant and his legal
representative (in nichtöffentlicher Sitzung nach Anhörung der
Staatsanwaltschaft bzw. der Oberstaatsanwaltschaft).

24. On 9 October 1964, the date for the opening of the trial
(Hauptberhandlung) was fixed for 9 November.

On 18 June 1965, after one hundred and two days of the hearing, the
Regional Criminal Court of Vienna, constituted as a mixed lay and
legal court (Schöffengericht), postponed the completion of the trial
indefinitely so that the investigation might be completed. Having
received a number of requests from the Public Prosecution and from
some of the accused including Neumeister, it gave effect to several of
them and ex officio called for certain additional measures of
investigation to be taken. Herbert Huber's attitude seems to have
played a major part in making this supplementary investigation
necessary: whereas during the preliminary investigation he had
maintained a strict silence, he explained his conduct in detail before
the judges; according to Neumeister, Huber's statements were
favourable to him while highly incriminating as regards Rafael. The
Court nevertheless indicated that, in its opinion, some of the new
enquiries and hearings of witnesses ordered by it should have been
conducted earlier during the preliminary investigation.

25. In February and July 1965, Neumeister made the journey to
Strasbourg with the permission of the Regional Court, in connection
with the application filed by him before the European Commission of
Human Rights. His passport is said to have been restored to him some
days before the second of these journeys.

26. The additional investigation could not be conducted by Judge
Leonhard who had appeared before the Court as a witness, (Section 68
of the Code of Criminal Procedure): it fell to his permanent
substitute. It lasted for more than two years and was not therefore
completed until after the adoption, on 27 May 1966, of the
Commission's Report. The Investigating Judge examined numerous
witnesses including Alfred Neumeister, the Applicant's brother
(13 December 1966), had experts' reports drawn up, had resort to the
services of the Exchequer, the Vienna Economic Police, and the police,
the Post Office, Interpol, Swiss and German authorities, etc. The
accused do not seem to have been examined again.

On 8 March 1966, the Regional Criminal Court of Vienna informed
Neumeister that a decision of the same day had, in pursuance of
Section 109 of the Code of Criminal Procedure, discontinued
(eingestellt) the proceedings instituted against him in respect of two
of the counts. The amount of the loss imputed to the defendant was
reduced by about 370,000 schillings.

27. The trial was resumed before the Regional Criminal Court of
Vienna on 4 December 1967. According to the information supplied to
the Court by the Government, it should last for between four and
six months.

28. In his application instituting proceedings of July 1963
(No. 1936/63), the text of which was produced by the Commission at the
request of the Court, Neumeister claimed:

- that he had been arrested and detained without there being
"reasonable suspicion" of his having committed an offence and without
there being grounds for it to be "reasonably considered necessary" to
prevent his fleeing (Article 5 (1) (c) of the Convention)
(art. 5-1-c);

- that he had reason to doubt the impartiality of those persons who
were competent both to pronounce upon his continued detention and also
to conduct the investigation (Article 6 (1)) (art. 6-1);

- that the procedure followed in the examination of his requests for
provisional release did not conform with the requirements of
Articles 5 (4) and 6 (1) and (3) (b) and (c) (art. 5-4, art. 6-1,
art. 6-3-b, art. 6-3-c) ("equality of arms"; Waffengleichheit);

- that he had been neither brought to trial "within a reasonable time"
nor released pending trial. On this point, the Applicant in
particular alleged that the Investigating Judge, who was required to
deal simultaneously with several important cases, was no longer able
to accomplish his task "within a reasonable time" within the meaning
of Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1) of the Convention.

Neumeister complained, inter alia, of the decisions given some months
earlier by the Judges' Chamber of the Regional Criminal Court of
Vienna and by the Court of Appeal.

In the course of a hearing before the Commission, the Applicant's
lawyer also invoked Article 5 (2) (art. 5-2) of the Convention,
affirming that his client had not been informed in detail and in
writing of the charges against him.

The Commission decided upon the admissibility of the Application on
6 July 1964. It rejected, on the grounds of their being manifestly
ill-founded, the complaints based on paragraphs 1 (c) and 2 of
Article 5 (art. 5-1-c, art. 5-2) of the Convention, but declared the
Application admissible in so far as it was based on Articles 5 (3),
5 (4) and 6 (1) (art. 5-3, art. 5-4, art. 6-1) ("reasonable time" and
"equality of arms"); it did not consider it necessary to pronounce
upon the alleged violation of Article 6 (3) (art. 6-3) as the
Applicant had not pursued this point.

29. Following the decision declaring admissible a part of the
Application, a Sub-Commission ascertained the facts of the case and
unsuccessfully sought a friendly settlement (Articles 28 and 29 of the
Convention) (art. 28, art. 29).

30. Invoking Article 5 (3) (art. 5-3), the Applicant maintained before
the Commission and the Sub-Commission that his detention on remand had
lasted longer than was reasonable. In support of his contention he
repeated many of the arguments he had put forward before the
Investigating Judge, the Judges' Chamber and the Court of Appeal of
Vienna (see above). He also claimed that his second detention could
be justified neither by the statements made about him by Lothar Rafael
early in 1962 nor by the fact that Walter Vollmann had absconded; in
particular he pointed out that Rafael's extradition
(on 21 December 1961) had taken place more than six months before his
own re-arrest (on 12 July 1962). According to the Applicant the
position seemed in fact to be very much more in his favour at the time
he lodged his Application (on 12 July 1963) than when he was first
released (on 12 May 1961), this being due largely to his acquittal on
29 March 1963 in the Customs fraud case and the substantial reduction
in the amount of the loss for which he was said to be responsible in
the case against Rafael and others. The competent legal authorities
were said to have disregarded this change for the better by
prohibiting the Applicant from going to Finland again,

07-19-2009, 12:44 AM
arrest and by refusing for a long time to release him either on
parole, as in 1961, or even against adequate security. Neumeister
also complained that they had delayed in obtaining information on his
means before fixing the amount of bail; he maintained that
Article 5 (3) (art. 5-3) in fine of the Convention precluded the
stipulation of such a large amount of bail that the prisoner's release
became impossible in practice. He further alleged - while protesting
his innocence - that the length of his detention was out of proportion
to the sentence he could expect if he were convicted: according to
him, the sentence could not exceed twenty months, or at the most two
years on the extreme hypothesis that the principal accused,
Lothar Rafael, received the maximum provided by law. Without
disputing the difficulties of the investigation, Neumeister remarked
that the most complicated part of it concerned a textiles case with
which he had nothing whatever to do; he added that the Investigating
Judge had not heard him since 21 January 1963. His detention on
remand was said to have caused him grave moral harm and material loss
and greatly hampered the preparation of his defence.

In his original application in July 1963, Neumeister affirmed that the
Investigating Judge, having to deal simultaneously with several large
cases, including that of Stögmller, was unable to complete his task
within a reasonable time as provided in Articles 5 (3) and 6 (1)
(art. 5-3, art. 6-1). Neumeister does not appear to have invoked the
latter provision subsequently on the point in question.

Lastly, according to the Applicant, the procedure in Austria for
considering applications for release pending trial (Sections 113 (2)
and 114 (2) of the Code of Criminal Procedure) is not in accordance
with the principle of "equality of arms" (Waffengleichheit)
safeguarded by Article 6 (1) (art. 6-1) of the Convention. Here
Neumeister referred to the opinions expressed by the Commission in the
Pataki and Dunshirn cases (Applications 596/59 and 789/60). He also
maintained that a judicial organ that followed the procedure in
question could not pass for a "court" within the meaning of
Article 5 (4) (art. 5-4).

31. After the failure of the attempt to arrange a friendly settlement
made by the Sub-Commission, the plenary Commission drew up a report as
required by Article 31 (art. 31) of the Convention. The Report was
adopted on 27 May 1966 and transmitted to the Committee of Ministers
of the Council of Europe on 17 August 1966. The Commission expressed
therein the following opinion which it later confirmed before the
Court:

(a) by eleven votes against one vote: the detention of the Applicant
lasted beyond a "reasonable time", with the consequence that there
was, in the case, a violation of Article 5 (3) (art. 5-3) of the
Convention;

(b) by six votes against six votes with the President's casting vote
(Rule 29 (3) of the Rules of Procedure of the Commission):
Neumeister's case was not heard "within a reasonable time" within the
meaning of Article 6 (1) (art. 6-1);

(c) by eight votes against two votes, with two abstentions: the
proceedings regarding the Applicant's release complied with
Articles 5 (4) and 6 (1) (art. 5-4, art. 6-1).

The Report contains several individual opinions, some concurring, some
dissenting.

Arguments of the Commission and the Government

1. In the Commission's view, Article 5 (3) (art. 5-3) of the
Convention secures the right of every person detained in accordance
with Article 5 (1) (c) (art. 5-1-c) either to release pending trial or
to trial within a reasonable time. If a person detained on remand is
provisionally released, then Article 5 (3) (art. 5-3) is thereby
complied with as regards the future; if he is not released, he must be
tried within a reasonable time. The Commission infers that detention
must not be prolonged beyond a reasonable period. The most important
problem, then, is said to be to interpret the words "reasonable time".
The Commission finds the term vague and lacking in precision; thus its
exact significance can be judged only in the light of the facts of the
case, not "in abstracto".

2. In order to facilitate such evaluation, the Commission believes
that it is in general necessary to examine an individual case
according to the following seven "criteria", "factors" or "elements":

(i) The actual length of detention. The Commission does not mean by
this to set an "absolute time-limit" to the length of detention.
Neither is it a question of measuring the length of detention by
itself; it is simply a matter of using it as one of the criteria for
determining whether that length is reasonable or unreasonable.

(ii) The length of detention in relation to the nature of the offence,
the penalty prescribed and to be expected in the event of conviction
and national legislation on the deduction of the period of detention
from any sentence passed. The Commission points out that the length
of detention may vary according to the nature of the offence, the
penalty prescribed and the likely penalty. Nevertheless, it considers
that, in judging the relationship between the penalty and the length
of detention, account must be taken of the principle of presumption of
innocence laid down in Article 6 (2) (art. 6-2) of the Convention. If
the period of detention were too similar in length to the sentence to
be expected in case of conviction, the principle of presumption of
innocence would not be entirely observed.

(iii) The material, moral or other effects of detention upon the
detained person beyond what are the normal consequences of detention.

(iv) The conduct of the accused:

(a) Did he contribute to the delay or expedition of the investigation
or trial?

(b) Were proceedings delayed by applications for release pending
trial, appeals or other remedies?

(c) Did he request release on bail or offer other guarantees to appear
for trial?

On this point the Commission considers that an accused who refuses to
co-operate with the investigating organs or who uses the remedies open
to him is thereby merely availing himself of his rights and should
therefore not be penalised for doing so unless he acts in an abusive
spirit or to an exaggerated extent.

With regard to the conduct of the other accused, the Commission
hesitates to accept that this can justify any prolongation of an
individual's detention.

07-19-2009, 12:44 AM
v) The difficulties in the investigation of the case (its complexity
in respect of the facts or the number of witnesses or accused, the
need to obtain evidence abroad, etc.).

(vi) The manner in which the investigation was conducted:

(a) the system of investigation applicable;

(b) the conduct of the investigation by the authorities (their
diligence in dealing with the case and the manner in which they
organised the investigation).

(vii) The conduct of the judicial authorities:

(a) in dealing with applications for release pending trial;

(b) in completing the trial.

3. The Commission considers that a rational plan of this kind makes
it possible to arrive at "a coherent interpretation without any
appearance of arbitrariness". It also remarks that the opinion to be
formulated in a particular dispute will be the result of an assessment
of all the factors. It may in fact happen that the application of
some criteria will tend to lead to the conclusion that a period of
detention was reasonable, whereas other criteria will suggest the
opposite and still others will not clearly point either way. The
overall conclusion is said then to depend on the relative value and
importance of the various factors; this does not rule out the
possibility that one of them alone may carry decisive weight in some
circumstances.

07-19-2009, 12:45 AM
The Commission adds that in the above criteria it has tried to cover
all the situations of fact that habitually arise in cases concerning
detention on remand, but that the list drawn up by it is by no means
exhaustive as exceptional situations may justify the use of other
criteria.

4. In the present case the Commission has applied the seven criteria
in finding the facts and in evaluating them from the legal point of
view; some of the facts seem to it to be relevant in relation to
several criteria.

5. In the Commission's view, application of the first criterion
points to the conclusion that the length of Neumeister's detention was
excessive.

The Commission considers that the six-months time-limit stipulated in
Article 26 (art. 26) in fine of the Convention precludes it from
expressing any opinion on whether the length of the Applicant's first
period of detention - two months and seventeen days (24 February -
12 May 1961) - was "reasonable". On the other hand, it has considered
the entire period of twenty-six months and four days that elapsed
between 12 July 1962, when Neumeister was re-arrested, and
16 September 1964, when he regained his freedom.

To the Government's contention that the only relevant period of
detention is that previous to the filing of the Application
(12 July 1963) the Commission replies that its work would be defeated
if, in a case like this one, where there is a continuing situation, it
were not competent to consider new facts subsequent to the filing of
an application - which facts could just as easily be favourable to the
respondent State.

6. In the Commission's view, the second criterion by its very nature
relates to the situation facing national authorities at the time of
detention; thus it cannot be applied in retrospect, i.e. in the light
of the sentence passed by the trial judge.

Attempting to form a "tentative opinion" of the sentence to be
expected by the Applicant in case of conviction, the Commission
observes that:

- section 203 of the Criminal Code provides for a sentence of five to
ten years' penal servitude;

- the parties argued before it whether there was any proportion
between the sentences that might be imposed and the damage caused by
each of the accused in this case; but it does not propose to express
any opinion on the matter;

07-19-2009, 12:46 AM
Austrian legislation allows the courts to pass sentences lower than
the usual minimum, provided there are extenuating circumstances.

In view more particularly of this last possibility, of which Austrian
courts are said to make plentiful use in practice, the Commission
considers that the length of Neumeister's detention is close to the
likely sentence in case of conviction. It also observes that under
Section 55 (a) of the Austrian Criminal Code, the period of detention
is as a rule to be counted as part of the sentence. However, the
Commission does not view this as a factor likely to affect the
judgment, in the light of the second criterion, as to whether the
length of detention is reasonable; in this connection it stresses the
uncertainty in which the prisoner has to live pending judgment.

All in all, therefore, application of the second criterion is thought
to indicate that the Applicant's detention lasted longer than was
reasonable.

7. The third criterion is said to point the same way, since
Neumeister suffered professionally and financially to an unusual
degree as a result of his detention.

8. With regard to the fourth criterion, the Commission finds that the
Applicant does not appear to have prolonged the investigation unduly
by his attitude. Of course he did not help shorten it, either, since
he continually protested his innocence, but in doing so he was
entirely within his rights. Neither does the Commission consider that
the fact that he lodged a series of applications and availed himself
of other remedies, in accordance with the law, indicates any intention
on his part to delay proceedings abusively. His actions may, to be
sure, have interrupted or slowed down the work of the Investigating
Judge and the Public Prosecution by obliging them to forward the case
record to the competent courts, but the Commission points out that
there are in such cases technical means of ensuring uninterrupted work
on the prosecution - for instance by making copies of the necessary
documents.

9. In the Commission's view, the case in question was an exceedingly
complicated one by reason of the nature, range and multiplicity of the
transactions in question, their foreign ramifications and the number
of accused and witnesses. Thus the fifth criterion would seem to
justify a long period of detention. The Commission thinks however
that the continued holding of Neumeister in detention cannot be
explained by the difficulties of the preliminary investigation after
it had been closed on 4 November 1963.

10. With regard to the sixth criterion, the Commission begins by
analysing the provisions of Austrian law governing the preliminary
investigation, in particular the distribution of cases among examining
judges (Sections 83 (2) and 87 (3) of the Constitution, Section 18 of
the Code of Criminal Procedure, Section 4 (2) of the
"Gerichtsverfassungsnovelle" and Sections 17-19 of the
"Geschäftsordnung fr die Gerichtshöfe Erster und Zweiter Instanz");
it then examines the course of the investigation of the Applicant's
case. It does not find that the competent organs neglected their
duties or in any other similar way prolonged Neumeister's detention,
but it considers that the working of the system in force caused
certain delays, since the Investigating Judge had to deal with several
very bulky and complicated cases at the same time. The Commission
remarks that it has experienced some difficulty in finding out whether
the allocation of cases can under Austrian law be changed once the
annual distribution has been established. It points out that, while
the Government denies that this can be done, the judge responsible for
investigating the Matznetter case, which is also pending before the
Court, was temporarily relieved of other cases. However, the
Commission does not think it necessary to go further into the
question: it is a general principle of international law that a State
cannot invoke its own legislation to justify failure to fulfil its
treaty obligations. The Commission therefore sees no reason to
investigate whether the delays it has found to have occurred are the
result of a legal obstacle or of failure to apply clauses by which
they could have been avoided.

07-19-2009, 12:46 AM
In short, consideration of the facts in the light of the sixth
criterion is said to suggest that the length of Neumeister's detention
was excessive. It is true that, at the hearing in February 1968, the
Government's representatives gave the Court further details of the
steps taken to relieve the burden on the Investigating Judge (cf.
infra). The Commission's answer is that those details would have
caused it to amplify its Report somewhat if it had had them then; but
that they are not of such a nature as to upset its conclusion.

11. The Commission considers that the conduct of the judicial
authorities in connection with Neumeister's applications for release
pending trial (first part of the seventh criterion) is open to
differing evaluations. It therefore finds it hard to state with
certainty whether or not an examination of this factor leads to the
conclusion that the length of detention exceeded reasonable bounds.

The Commission does not in any case accept the Government's argument
(cf. infra) that Neumeister forfeited his right to "trial within a
reasonable time" on the day the Judge's Chamber of the Regional
Criminal Court of Vienna first agreed in principle to release him on
bail (8 January 1964). It asserts that the second sentence of
Article 5 (3) (art. 5-3) of the Convention affords the Contracting
States a middle way between continuing detention and outright release,
but it does not consider that resort to that solution gives a
Government an excuse for keeping in detention indefinitely a person
who refuses to provide the security demanded, especially if he is in
no position to do so: otherwise a Government could easily evade its
obligations by requiring excessive guarantees.

The Commission adds that the second part of the seventh criterion (the
conduct of the judicial authorities in completing the trial) is
inapplicable here in connection with Article 5 (3) (art. 5-3), since
Neumeister was released before the trial opened.

12. In the light of an overall evaluation of these various factors,
the Commission concludes, by eleven votes to one, that Article 5 (3)
(art. 5-3) has been violated. It does not state the exact date on
which it considers the violation to have begun: it thinks that its
task was solely to give an opinion on whether or not the period of
Neumeister's detention was reasonable.

13. In the Commission's view, the problem of the "time" stipulated in
Article 6 (1) (art. 6-1) of the Convention is different from the
problem under Article 5 (3) (art. 5-3), for the relevance of the
former Article does not depend on the fact of detention.

In a criminal case the period in question is thought by the Commission
to date from the day on which the suspicion against a person begins to
have substantial repercussions on his situation. In the present case,
the Commission, by seven votes to five, has taken this to be the day
of Neumeister's first interrogation by the Investigating Judge
(21 January 1960) - not, for instance, the date on which the charge
was preferred (17 March 1964).

The Commission furthermore considers, by nine votes to three, that the
"time" referred to in Article 6 (art. 6) does not end with the
opening of the trial or the hearing of the accused by the trial court
(cf. the words "entendue" and "hearing") but, at the very least, with
the "determination" by the court of first instance "of any criminal
charge against him" ("... dcidera ... du bien-fond de toute
accusation") - which has not yet come about in this case. The
Commission does not think it necessary in the present instance to
consider here whether this "time" would also include appeal
proceedings, if any.

07-19-2009, 12:47 AM
For the purpose of determining whether a period of time is
"reasonable" the Commission considers that several of the criteria it
applies in connection with Article 5 (3) (art. 5-3) (the first,
fourth, fifth, sixth and both parts of the seventh) also have a
bearing, mutatis mutandis, on Article 6 (1) (art. 6-1).

The Commission holds, in short, by six votes - including its
President's casting vote - to six, that Neumeister was not heard
within a reasonable time and that Article 6 (1) (art. 6-1) has thus
not been observed in this respect. It does not attach great weight to
the fact that Neumeister hardly complained at all on this score: it
believes that it is competent to consider any point of law that seems
to it to arise from the facts of an application, and if necessary to
do so in relation to an article of the Convention not expressly
invoked by the Applicant; this is said to be borne out by its previous
practice and by Rule 41 (1) (d) of its Rules of Procedure.

14. In the Commission's view, the procedure in Austria for
considering applications for release pending trial lies outside the
scope of Article 6 (1) (art. 6-1) of the Convention, for it is
concerned with the determination neither of a "criminal charge"
(unanimous vote) nor of "civil rights and obligations" (seven votes to
five). Unlike the Government (see below), the Commission does not
think that Article 6 (art. 6) leaves it to the municipal law of each
Contracting State to define the words quoted above. However, it does
not feel able to interpret them broadly enough to cover the procedure
in question. With the intention of explaining its views on the
autonomous concept of "civil rights and obligations", it refers in
particular to the "travaux preparatoires" on the Convention and its
own earlier rulings.

The Commission thinks it can be maintained that Article 5 (4)
(art. 5-4) of the Convention, in stipulating that the lawfulness of
detention shall be decided by a court, demands respect for certain
fundamental principles. However, it does not find the procedure laid
down in Sections 113 and 114 of the Austrian Code of Criminal
Procedure to be contrary to that requirement (seven votes to five).

The Commission concludes, by eight votes to two with two abstentions,
that the proceedings on Neumeister's release involved no violation of
either Article 5 (4) (art. 5-4) or Article 6 (1) (art. 6-1).

15. The Commission draws the Court's attention to the individual
opinions - some concurring and some dissenting - expressed in its
Report by certain of its members with regard to the various questions
that arise in this case.

16. At the hearing of 12 February 1968, the Commission made the
following submissions:

"May it please the Court:

To decide:

(1) Whether or not Article 5 (3) (art. 5-3) of the Convention has been
violated by the detention of Fritz Neumeister from 12 July 1962 to
16 September 1964.

(2) Whether or not Article 6 (1) (art. 6-1) of the Convention has been
violated by the non-completion of the criminal proceedings instituted
against Fritz Neumeister as from 21 January 1960 when he was first
heard by the Investigating Judge as being suspected of the criminal
offences concerned, or from any later date.

(3) Whether or not Article 6 (1) (art. 6-1) or Article 5 (4)
(art. 5-4), or the two provisions combined, have been violated by the
procedure followed under Sections 113 and 114 of the Austrian Code of
Criminal Procedure with respect to appeals lodged by Fritz Neumeister
against his detention pending trial."

17. According to the Government the Commission's opinion, as
expressed in its Report, that the Republic of Austria has violated
Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1) in Neumeister's case is
based on faulty fact-finding and an erroneous interpretation of the
Convention.

18. With regard to the interpretation of Article 5 (3) (art. 5-3)
and its application to the present case, the Government contests first
of all the method adopted by the Commission. The literal meaning of
the word "reasonable" ("raisonnable") is said to show clearly that the
question whether the length of detention on remand was excessive can
be settled only in the light of the circumstances of the case and not
on the basis of a set of preconceived "criteria", "elements" or
"factors". It is maintained that this opinion is in accordance with
the Commission's previous practice and the intentions of the drafters
of Article 5 (3) (art. 5-3). The Government moreover thinks that the
system of criminal procedure of the State concerned is of great
importance in this context. In its view, the authors of the
Convention were convinced that the two systems of criminal procedure
- the Anglo-American and the Continental - in force in the member
States of the Council of Europe were entirely in harmony with the
Convention, despite the profound differences between them. The
Government deduces that Article 5 (3) (art. 5-3) is not to be
considered from the angle of just one given legal system. It is said
to follow that an examination of whether or not the length of a
detention pending trial was "reasonable" must never ignore the "common
standard" of that legal system to which the High Contracting Party
concerned belongs. According to the Government, a decision that the
Convention was not respected in Neumeister's case would mean
indirectly that the Austrian law of criminal procedure is not in
accordance with the principles of the Convention, whereas in fact it
is very similar to that of most other countries on the continent of
Europe.

The Government also complains that the Commission's fact-finding was
carried out in the light of the criteria chosen by itself. It
maintains that the Commission, starting from a preconceived legal
position, based its opinion not on all the facts of the case but only
on those facts which it needed to answer certain questions on which it
considered the solution to the legal problem to depend. In so doing
it failed to establish or evaluate several important facts.

19. The Government also set against the Commission's reasoning the
following considerations, which are said to demonstrate the absence of
any violation of Article 5 (3) (art. 5-3).

20. To the first of the seven "criteria", namely the actual length of
detention, the Government raises objections of principle. In its
opinion, this "criterion" tends to bring into the Convention an
absolute limit on the length of detention on remand, which is
precisely what the Contracting Parties sought to avoid by using the
words "reasonable time". Moreover, on closer examination, it is not a
true criterion, for it prejudges the conclusion to which the other
criteria are supposed to lead. In any case, the Commission did not
adopt it in its previous decisions.

The Government furthermore considers that the Application is concerned
only with the period spent by Neumeister in detention before he lodged
his Application with the Commission (12 July 1963). By taking into
account the period of time up to his release pending trial
(16 September 1964) the Commission is said to have exceeded the
competence conferred upon it by Articles 24-31 of the Convention
(art. 24, art. 25, art. 26, art. 27, art. 28, art. 29, art. 30,
art. 31).

As a subsidiary argument the Government submits that the period
subsequent to 8 January 1964, when the Judges' Chamber for the first
time agreed in principle to release Neumeister on bail, cannot be
taken into consideration. In its view such an offer of release meets
the requirements of Article 5 (3) (art. 5-3). If an individual,
either because he does not agree to provide, or is unable to provide,
the guarantee demanded, does not avail himself of the offer, then, in
the Government's view, he forfeits the right to trial within a
reasonable time. Besides, Article 5 (3) (art. 5-3) contains no
express provision against demanding "excessive" guarantees from
detainees; it follows that the drafters of the Convention did not
intend to place any obligation on States in this respect.

21. Neither does the Government share the opinion expressed by the
Commission with regard to the second criterion. In applying it the
Commission is said to have engaged in speculation on the sentence
likely to be passed on the Applicant - unavoidably, since he has not
yet been convicted. This speculation, it is argued, is based both on
an erroneous evaluation of those facts that are considered established
and also on faulty fact-finding. Thus the assumption that an Austrian
court has the option of passing a sentence below the legal minimum
where there are extenuating circumstances is inaccurate in the
unconditional form the Commission allegedly gives to it.

07-19-2009, 12:47 AM
Section 265 (a) of the Code of Criminal Procedure, which is relevant
here, only applies in the exceptional case of a conjunction of very
important and predominant extenuating circumstances. In order to
establish the facts objectively and completely the Commission should,
in the Government's view, have taken into consideration the practice
of the Austrian courts, which, it is said, are not in the habit of
passing sentences appreciably lighter than the legal minimum in cases
of damage amounting to several million schillings. Furthermore the
Government points out that the Austrian Criminal Code also lays down a
number of aggravating circumstances in Sections 43-45. Lastly, a
purely mathematical calculation relating the sentence to the amount of
damage for which the accused is responsible would in the Government's
view have unacceptable consequences.

22. The third criterion, too, is said to be ill-suited to
consideration of the present case : it introduces differential
treatment in the application of the provisions of law relating to
release pending trial, a result which is incompatible with the
principle of equality before the law enshrined in Section 7 of the
Austrian Constitution and Article 7 of the Universal Declaration of
Human Rights.

Moreover, in order to apply the criterion it would be necessary to
establish exactly what effect detention had had on Neumeister's life.
The Commission is said to have neglected to do this. It has not put
forward any arguments in support of its conclusion that the
deterioration in the Applicant's financial position was mainly or
entirely due to his detention; in this respect it has merely cited his
unsubstantiated statements and an isolated passage from a decision of
the Judges' Chamber of the Regional Criminal Court of Vienna.
Similarly, the Commission is said not to have given any details of the
difficulties which Neumeister claims to have encountered in preparing
his defence. More generally, it has lost sight of the fact that any
detention necessarily entails hardships for the detained person.

23. According to the Government, in connection with the fourth
criterion, the Commission has presented no more than part of the
result of its investigations, without mentioning in particular certain
facts of which it was aware and which, properly viewed, would have
cast a different light on the Applicant's conduct.

The Commission is said to have made the mistake of applying the fourth
criterion from a subjective angle, forgetting that the attitude of an
accused during proceedings is an objective factor. It is true that
Neumeister did not try to slow down the proceedings by his appeals.
Nevertheless, they did cause delays, since on each occasion the record
had to be handed over to the competent authorities. Moreover,
Neumeister is said to have done nothing to speed up the proceedings.
On the contrary, he did not give an accurate account of his part in
the transactions in question.

The Government lastly points out that, although the fourth criterion
also covers the conduct of other accused persons, the Commission has
considered the Applicant's behaviour in isolation. The Government
holds that if several persons suspected of complicity are prosecuted
simultaneously, each must bear the consequences of the others'
actions. It therefore complains that the Commission has considered the
prosecution of the Applicant separately from the rest of the case,
whereas the Investigating Judge, when giving evidence before it as a
witness, stated that the reason why he had not investigated
Neumeister's case separately was that some of the offences with which
he was charged were inextricably bound up with the activities of the
other accused. According to the Government the Commission would, if
its fact-finding had been complete and correct and its application of
the criterion legally accurate, necessarily have expressed the opinion
that the length of detention had been reasonable.

07-19-2009, 12:48 AM
24. On the fifth criterion, the Government agrees with the
Commission's conclusion. It considers however that the Commission has
not taken sufficiently into consideration the difficulties inherent in
the criminal proceedings in question (statement of the facts,
paragraph 20). It recalls that it was necessary to seek judicial
assistance abroad and to request the extradition of several accused.
Because of the size and complexity of the transactions in dispute the
enquiries and interrogations conducted outside Austria took a long
time and in some cases required the personal participation of the
Investigating Judge. Moreover, in some of the countries approached,
especially Switzerland, the request for legal assistance raised legal
problems, the solution of which also caused loss of time. The
Commission's report is said not to mention these facts, without which
neither the complexity of the case nor the obstacles encountered by
the Investigating Judge can be properly assessed. The Government
lastly regrets that here, too, the Commission has taken into
consideration only the number of other accused, not their conduct
during the proceedings.

25. With regard to the sixth criterion the facts found by the
Commission are said to be inadequate to justify its conclusion.

In the first place, the Commission is thought to have underestimated
the part played by the preliminary investigation in Austrian criminal
procedure. The Government points out that the object of the
"Voruntersuchung" is to establish the material facts. It follows that
in complicated and difficult criminal cases a fairly long preliminary
investigation and thus a fairly long detention on remand are often
inevitable.

The Commission is also said not to have evaluated the facts of the
case properly. It has, it is argued, worked on the assumption that it
would have been possible to release the Investigating Judge from all
other work so that he could devote himself solely to the investigation
of the Applicant's case. But under Austrian legislation
(Section 87 (3) of the Constitution, Section 18 of the Code of
Criminal Procedure, Section 34 (1) of the Judicature Act and Section
17 (5) of the Rules adopted by the Ministry of Justice for courts of
first and second Instance) the allocation of criminal cases cannot be
changed in the course of a year just because one judge is overworked.
However, the Government points out that the Presiding Judge and the
"Staff Chamber" (Personalsenat) of the Regional Criminal Court of
Vienna, anxious to lighten the burden on the Investigating Judge, on
many occasions allotted to other judges cases that normally should
have gone to him, taking full advantage of the law in force for that
purpose (between 1 and 30 June 1959, between 1 December 1960 and 31
May 1961, between 18 September 1961 and 31 July 1962, between 1
October and 31 December 1962 and between 15 May and 30 September
1963). The Investigating Judge, when heard by the Commission as a
witness, in fact stated that if he had not had to deal with several
cases at the same time, the investigation of the Neumeister case would
have been shortened but that the time saved would have been so minimal
as to be hardly worth mentioning.

In considering the attitude of the authorities responsible for the
investigation the Commission is said to have based its findings on the
evidence of the Investigating Judge by itself, without subsequently
evaluating it from a legal point of view. In the Government's
opinion, such an evaluation would have shown that the Judge and his
assistants had acted with the necessary care and diligence even
although some delay was inevitable, since two of the main accused had
escaped abroad and it was necessary to issue international "wanted"
notices in order to locate them.

In general terms the Government considers that no effort was spared to
hasten the investigation. It points out that the prosecutions
relating to certain acts or accused were severed or dropped under
Sections 57 (1) and 34 (2) of the Code of Criminal Procedure. It
thinks that nothing more could have been done in this respect than was
done. In its view, the various offences in dispute were so closely
inter-related that it was not possible to dissociate Neumeister's case
from the cases of the other accused. Moreover, to have done so would
have been contrary to the legal principle of connexity (Section 56 (1)
of the Code of Criminal Procedure) and would in fact have delayed the
proceedings, for the Court would have been obliged to compare the
allegations of all the accused in order to check their veracity.

26. With regard to the seventh criterion the Government states that
it is in no position to furnish any critical comment: it complains
that the Commission has completely failed to state the conclusions it
draws from the facts it considers to have found in its Report.

In particular, the Government maintains that the decision of
8 January 1964, making the Applicant's release subject to guarantees
of two million schillings was entirely in accordance with
Article 5 (3) (art. 5-3) of the Convention, since there was a danger
that he would abscond and since he had probably enriched himself
considerably as a result of the offences with which he is charged.

According to the Government the Commission could not have failed, if
it had correctly evaluated the relevant facts, to recognise that the
period of detention in dispute was reasonable.

27. From the foregoing, the Government concludes that, even if the
method chosen by the Commission is used, no violation of Article 5 (3)
(art. 5-3) can be detected in this case, for the arguments suggesting
that the period of detention was reasonable far outweigh those to the
contrary. This is said to be particularly true of criteria 4, 5 and 6,
the decisive ones in this case.

The Government expresses surprise that the Commission has not stated
on what date it thinks the length of Neumeister's detention to have
become excessive.

28. In the Government's view, the Commission has exceeded its
competence in considering whether or not Neumeister was heard within a
"reasonable time" as required by Article 6 (1) (art. 6-1) of the
Convention. The Applicant is said to have made no complaint in this
respect and the problem in question to have played no part at the
hearing in July 1964 on the admissibility of the Application.

Moreover, the Government considers that the words "reasonable time"
mean the same thing in both Articles in which they appear, namely
Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1).

The time to be considered in connection with Article 6 (1)
(art. 6-1) is said to have begun not with Neumeister's first
interrogation by the Investigating Judge (on 21 January 1960) but only
when the indictment was preferred (on 17 March 1964). The terms
"criminal charge" and "accusation" are in fact said to refer, in both
the Continental and the Anglo-American systems, to the legal act of
requesting the Court to rule on whether the allegation that an
individual has committed a punishable offence is well-founded. The
Government remarks that under the Austrian Code of Criminal Procedure,
only a person against whom an "Anklage" has been filed is entitled to
a hearing before an independent tribunal. In its view adoption of the
Commission's interpretation of the point would have results
incompatible with the aims of the Convention: the effect would be to
prevent the cessation of prosecution before the trial was opened,
whereas several national legal systems, in particular Sections 90, 189
and 227 of the Austrian Code of Criminal Procedure, allow this. Such
an interpretation would also conflict with paragraphs 3 (a) and 2 of
Article 6 (art. 6-3-a, art. 6-2): it is difficult to see how a person
against whom a mere enquiry or preliminary investigation
(Vorverhandlungen) is opened can be informed in detail "of the nature
and cause of the accusation against him"; as for the principle of
presumption of innocence, it is said to apply solely to an individual
against whom a criminal charge within the meaning of Article 6 (1)
(art. 6-1) has been brought - as indeed the Commission itself is
affirmed to have acknowledged on many occasions.

Neither does the Government share the opinion expressed by the
Commission that the time covered by Article 6 (1) (art. 6-1) runs at
least up to the determination of the criminal charge by the court of
first instance. It maintains that in fact that time comes to an end
as soon as the accused receives a "hearing", i.e. at the beginning of
the trial. On this point the Government stresses the contrast between
Article 6 (1) and Article 5 (3) (art. 6-1, art. 5-3), which contains
the word "juge" ("trial" in the English text). It adds that in the
English version of Article 6 (1) (art. 6-1) the drafters of the
Convention would have used the words "for the determination" instead
of "in the determination" if their intention had really been to
require a decision to be reached on each charge within a reasonable
time.

07-19-2009, 12:48 AM
Lastly, the Government complains that the Commission merely states
that some of the criteria which it applied in relation to
Article 5 (3) (art. 5-3) also hold good for Article 6 (1) (art. 6-1),
without indicating what facts it considers more particularly relevant
in relation to the first or second provision.

29. On the question of the procedure in Austria for the consideration
of applications for release pending trial, the Government mainly
refers to the Commission's opinion that this procedure does not
infringe Article 6 (1) (art. 6-1) or Article 5 (4) (art. 5-4). It
remarks that it has always agreed with the restrictive interpretation
of the words "civil rights" ("droits de caractre civil") apparent in
all the Commission's decisions. It thinks however, unlike the
Commission, that the Convention leaves it to the municipal law of each
Contracting State to define these terms and that the States have no
common view on the matter. It asks the Court for a ruling on this
important question.

30. At the hearing of 13 February 1968, the Government made the
following submissions.

"(May it please the Court to) declare:

that the measures taken by the Austrian authorities, which are the
subject of the application lodged by Fritz Neumeister against the
Republic of Austria and of the Report of the European Commission of
Human Rights of 27 May 1966, according to Article 31 (art. 31), of
the European Convention on Human Rights, do not conflict with the
obligations arising from the said Convention."

AS TO THE LAW

1. The Court is called upon to decide whether Neumeister has been a
victim of violations of the Convention by the Austrian judicial
authorities with respect to the facts referred to in that part of his
Application of 12 July 1963 which the Commission declared admissible
on 6 July 1964. These facts relate to the length of detention of
Neumeister, who at the time of the filing of his Application had
already been detained without a break for a period of one year, to the
length of the proceedings against him and to the circumstances in
which his various requests for release were determined.

2. The provisions of the Convention which are relevant to the
examination of these questions are:

(a) as regards the length of Neumeister's detention on remand,
Article 5 (3) (art. 5-3);

(b) as regards the length of the proceedings against him,
Article 6 (1) (art. 6-1);

(c) as regards the failure to observe the principle of "equality of
arms" in the examination of his requests for release, Articles 5 (4)
and 6 (1) (art. 5-4, art. 6-1), or possibly these two Articles read in
conjunction.

A. The question whether the length of Neumeister's detention exceeded
the reasonable time laid down in Article 5 (3) (art. 5-3) of the
Convention

3. Under Article 5 (3) (art. 5-3) "everyone arrested or detained in
accordance with the provisions of paragraph 1 (c)" of that Article
(art. 5-1-c) "shall be entitled", inter alia, "to trial within a
reasonable time or to release pending trial"; it is also provided that
"release may be conditioned by guarantees to appear for trial".

4. The Court is of the opinion that this provision cannot be
understood as giving the judicial authorities a choice between either
bringing the accused to trial within a reasonable time or granting him
provisional release even subject to guarantees. The reasonableness of
the time spent by an accused person in detention up to the beginning
of the trial must be assessed in relation to the very fact of his
detention. Until conviction, he must be presumed innocent, and the
purpose of the provision under consideration is essentially to require
his provisional release once his continuing detention ceases to be
reasonable. This is, moreover, the intention behind the Austrian
legislation (Section 190 (1) of the Code of Criminal Procedure).

5. The Court is likewise of the opinion that, in determining in a
given case whether or not the detention of an accused person exceeds a
reasonable limit, it is for the national judicial authorities to seek
all the facts arguing for or against the existence of a genuine
requirement of public interest justifying a departure from the rule of
respect for individual liberty.

It is essentially on the basis of the reasons given in the decisions
on the applications for release pending trial, and of the true facts
mentioned by the Applicant in his appeals, that the Court is called
upon to decide whether or not there has been a violation of the
Convention.

6. In the present case Neumeister was subjected to two periods of
detention on remand, the first from 24 February 1961 to 12 May 1961,
lasting two months and seventeen days, and the second from
12 July 1962 to 16 September 1964, lasting two years, two months and
four days.

Admittedly the Court cannot consider whether or not the first period
was compatible with the Convention; for even supposing that in 1961
Neumeister availed himself of certain remedies and exhausted them, he
did not approach the Commission until 12 July 1963, that is to say,
after the six-month time-limit laid down in Article 26 (art. 26) of
the Convention had expired.

That period of detention nevertheless constituted a first departure
from respect for the liberty which Neumeister could in principle
claim. In the event of his being convicted, this first period would
normally be deducted from the term of imprisonment to which he would
be sentenced (Section 55 (a) of the Austrian Criminal Code); it would
thus reduce the actual length of imprisonment which might be expected.
It should therefore be taken into account in assessing the
reasonableness of his later detention. Moreover it is observed that
the Austrian Government has accepted that the period spent by
Neumeister in detention after his second arrest, on 12 July 1962,
should be taken into account by the Court, although his Application
was filed with the Commission more than six months after the final
decision on his first request for provisional release.

7. The Austrian Government, however, has argued that the Court could
not consider Neumeister's detention subsequent to 12 July 1963, the
day on which he filed his Application, as the Application could relate
only to facts that had taken place before this date.

The Court considers it cannot accept this view. In his Application of
12 July 1963 Neumeister complained not of an isolated act but rather
of a situation in which he had been for some time and which was to
last until it was ended by a decision granting him provisional
release, a decision which he sought in vain for a considerable time.
It would be excessively formalistic to demand that an Applicant
denouncing such a situation should file a new Application with the
Commission after each final decision rejecting a request for release.
This would pointlessly involve both the Commission and the Court in a
confusing multiplication of proceedings which would tend to paralyse
their working.

07-19-2009, 12:49 AM
For these reasons, the Court has found that it must examine
Neumeister's continued detention on remand until his provisional
release on 16 September 1964.

8. What strikes one first when examining the circumstances
surrounding Neumeister's second detention is that, while his arrest on
12 July 1962 had been provoked by the recent statements of his
co-accused Rafael, the Applicant, who had already been the subject of
a long investigation, was not interrogated again during the fifteen
months which elapsed between his second arrest (12 July 1962) and the
close of the investigation (4 November 1963). On 21 January 1963, it
is true, he was confronted with Rafael, but this confrontation, which
was interrupted after a few minutes, was not recommenced, contrary to
what was to be inferred from the minutes.

Such a state of affairs called for particular attention on the part of
the judicial authorities when examining the applications which
Neumeister made to them with a view to obtaining his release pending
trial.

9. The reason invoked by the authorities to justify their rejection
of the applications for release was that mentioned in the arrest
warrant of 12 July 1962, namely the danger that, by absconding,
Neumeister would avoid appearing before the court that was to try him.

In the view of the judicial authorities, this danger resulted from the
anxiety which must have been caused to Neumeister by the statements
made by his co-accused Rafael during his interrogations in
January 1962 and his confrontations with Neumeister on 10 and
11 July 1962; these had, they argued, to such an extent aggravated the
case against the accused and increased both the severity of the
sentence to be expected in the event of his conviction and the amount
of loss for which he could be held responsible that they must have
given him a considerable temptation to abscond and thereby evade this
two-fold - civil and criminal - liability.

The first Austrian decisions found confirmation of this danger of
flight in the fact that Neumeister was said to have continued the
preparations for his trip to Finland after becoming aware of the
worsening of his position and after being informed by the
Investigating Judge that permission for the journey had been refused.

10. The Court finds it understandable that the Austrian judicial
authorities considered the danger of flight as having been much
increased in July 1962 by the greater gravity of the criminal and
civil penalties which Rafael's new statements must have caused
Neumeister to fear.

The danger of flight cannot, however, be evaluated solely on the basis
of such considerations. Other factors, especially those relating to
the character of the person involved, his morals, his home, his
occupation, his assets, his family ties and all kinds of links with
the country in which he is being prosecuted may either confirm the
existence of a danger of flight or make it appear so small that it
cannot justify detention pending trial.

It should also be borne in mind that the danger of flight necessarily
decreases as the time spent in detention passes by for the probability
that the length of detention on remand will be deducted from the
period of imprisonment which the person concerned may expect if
convicted, is likely to make the prospect seem less awesome to him and
reduce his temptation to flee.

11. In the present case, Neumeister's counter-arguments against the
reasons given by the Austrian judicial authorities in justification of
his provisional detention have been summarised above (statement of the
the facts, paras 13, 14, 16 and 18). The Applicant referred, both in
his appeals and also before the Commission, to various circumstances
relating to his settled position in Vienna, which were such as to
combat any temptation for him to flee. His explanations of the
alleged continuation of his preparations for his journey to Finland
are confirmed by a study of the documents on the file and were not
contradicted by the Investigating Judge in the course of his
examination by the Commission (statement of the facts, paras 11, 12
and 14).

The Investigating Judge also admitted before the Commission that he
personally did not believe that Neumeister intended to abscond in
order to avoid appearing at his trial (statement of the facts,
para. 11). Such a statement from a judge who, in the course of the
long investigation conducted since 1959, must have become well
acquainted with the Applicant is certainly not without importance.

12. The Court is of the opinion that in these circumstances the
danger that Neumeister would avoid appearing at the trial by
absconding was, in October 1962 in any event, no longer so great that
it was necessary to dismiss as quite ineffective the taking of the
guarantees which, under Article 5 (3) (art. 5-3) may condition a grant
of provisional release in order to reduce the risks which it entails.

However, this was precisely the attitude of the Austrian judicial
authorities when for the first time, on 26 October 1962, Neumeister
proposed a bank guarantee of 200,000 or, if necessary,
250,000 schillings (statement of the facts, para. 14), again when this
offer was repeated on 12 July 1963 (statement of the facts, para. 16)
and even when the offer of bail was increased by his lawyer
on 6 November 1963 to one million schillings (statement of the facts,
para. 18).

13. The Court is not in a position to state an opinion as to the
amount of security which could reasonably be demanded of Neumeister,
and it does not reject the notion that the first offers could have
been dismissed as insufficient. It notes however that the Austrian
courts based their calculations mainly on the amount of loss resulting
from the offences imputed to Neumeister which he might be called upon
to make good. The loss was such that, according to the decisions
given, the offer of a bank guarantee could not be considered
("indiskutabel", statement of the facts, paras. 14 and 16). This
refusal by the judicial authorities to take any account whatsoever of
the successive offers of bail made by Neumeister became less and less
justified the nearer the offers came to the sum which could reasonably
be considered sufficient to ensure his appearance at the trial.

07-19-2009, 12:50 AM
14. When the principle of release conditioned by guarantees seemed
acceptable, it was still exclusively in relation to the amount of loss
that the amount of security required was fixed successively at
2,000,000, 1,750,000 and 1,250,000 schillings, finally to be reduced
on 3 June 1964 to the sum of one million schillings which Neumeister
was able to provide only on 16 September.

This concern to fix the amount of the guarantee to be furnished by a
detained person solely in relation to the amount of the loss imputed
to him does not seem to be in conformity with Article 5 (3) (art. 5-3)
of the Convention. The guarantee provided for by that Article
(art. 5-3) is designed to ensure not the reparation of loss but rather
the presence of the accused at the hearing. Its amount must therefore
be assessed principally by reference to him, his assets and his
relationship with the persons who are to provide the security, in
other words to the degree of confidence that is possible that the
prospect of loss of the security or of action against the guarantors
in case of his non-appearance at the trial will act as a sufficient
deterrent to dispel any wish on his part to abscond.

15. For these reasons, the Court finds that Neumeister's continued
provisional detention until 16 September 1964 constituted a violation
of Article 5 (3) (art. 5-3) of the Convention.

B. The question whether the proceedings against Neumeister lasted
beyond the reasonable time laid down in Article 6 (1) (art. 6-1) of
the Convention

16. The Commission has expressed the opinion that it is competent to
consider, even ex officio, whether the facts referred to it in an
application disclose violations of the Convention other than those of
which the application complains. This is certainly the case, and the
same is true of the Court, as has already been held in the judgment of
1st July 1961 on the merits of the Lawless case (Publications of the
Court, Series A, 1960-61, page 60, para. 40). It is however doubtful
whether the question arose in the present case, since Article 6 (1)
(art. 6-1) was expressly mentioned in the document filed by the
Applicant in July 1963 (statement of the facts, paras. 28 and 30). In
any event, as the whole of the proceedings against Neumeister since he
was charged has been referred to it, the Court is of opinion that it
must examine, as the Commission has done, whether or not the facts of
the case disclose a violation of Article 6 (1) (art. 6-1).

17. The first paragraph of Article 6 (art. 6-1) provides that "in the
determination of ... any criminal charge against him, everyone is
entitled to a ... hearing within a reasonable time by (a) ... tribunal
...".

18. The period to be taken into consideration for verifying whether
this provision has been observed necessarily begins with the day on
which a person is charged, for otherwise it would not be possible to
determine the charge, as this word is understood within the meaning of
the Convention.

The Court notes that Neumeister was charged on 23 February 1961.

19. Article 6 (1) (art. 6-1), furthermore, indicates as the final
point, the judgment determining the charge; this may be a decision
given by an appeal court when such a court pronounces upon the merits
of the charge. In the present case there has not yet been a judgment
on the merits. Neumeister appeared before the trial judge on
09 November 1964, but a decision given on 18 June 1965 called for
further measures of investigation, and the trial was reopened on
4 December 1967. It goes without saying that none of these dates may
be accepted as the end of the period to which Article 6 (1) (art. 6-1)
applies.

07-19-2009, 12:50 AM
20. That more than seven years have already elapsed since the laying
of charges without any determination of them having yet been made in a
judgment convicting or acquitting the accused, certainly indicates an
exceptionally long period which in most cases should be considered as
exceeding the reasonable time laid down in Article 6 (1) (art. 6-1).

Moreover, an examination of the table by the Austrian Government of
the activities of the Investigating Judge between 12 July 1962 and the
close of the investigation on 4 November 1963 (Appendix IV of the
Commission's Report), gives rise to serious disquiet. Not only was
there during those fifteen months, as the Court has already noted
(para. 8), no interrogation of Neumeister nor any confrontation of any
importance with the other accused persons whose statements are said to
have caused the Applicant's second arrest, but between 24 June 1963
and 18 September of the same year, the Judge did not interrogate any
of the numerous co-accused or any witness, nor did he proceed to any
other measure of investigation.

Lastly, it is indeed disappointing that the trial was not able to
commence before 9 November 1964, that is a year after the closing of
the investigation, and even more disappointing that, following such a
long investigation, the trial court was compelled, after sitting for
several months, to order further investigations which were not all
caused by the statements of the accused Huber, who had remained silent
until the trial.

21. The Court does not however consider these various facts
sufficient to warrant the conclusion that the reasonable time laid
down in Article 6 (1) (art. 6-1) of the Convention was exceeded in the
present case.

It is beyond doubt that the Neumeister case was of extraordinary
complexity by reason of the circumstances mentioned above (statement
of the facts, para. 20). It is, for example, not possible to hold the
Austrian judicial authorities responsible for the difficulties they
encountered abroad in obtaining the execution of their numerous
letters rogatory (arguments of the Government, para. 24). The need to
wait for replies probably explains the delay in closing the
investigation, despite the fact that no further measures of
investigation remained to be conducted in Austria.

The course of the investigation would probably have been accelerated
had the Applicant's case been severed from those of his co-accused,
but nothing suggests that such a severance would here have been
compatible with the good administration of justice (arguments of the
Government, section 25 in fine).

Neither does the Court believe that the course of the investigation
would have been accelerated, if it had been allocated to more than one
judge, even supposing that this had been legally possible. It also
notes that, although the designated Judge could not in fact be
relieved of the financial cases of which he had been seized before
1959, many other cases which would normally have fallen to him after
this date were assigned to other judges (arguments of the Government,
para. 25).

It should moreover be pointed out that a concern for speed cannot
dispense those judges who in the system of criminal procedure in force
on the continent of Europe are responsible for the investigation or
the conduct of the trial from taking every measure likely to throw
light on the truth or falsehood of the charges (Grundsatz der
amtswegigen Wahrheitserforschung).

Finally, it is obvious that the delays in opening and reopening the
hearing were in large part caused by the need to give the legal
representatives of the parties and also the judges sitting on the case
time to acquaint themselves with the case record, which comprised
twenty-one volumes of about five hundred pages each as well as a large
number of other documents (statement of the facts, para. 19).

C. The question whether there has been violation of the principle of
"equality of arms" in the examination of Neumeister's requests for
release and whether there has in consequence been a violation of
Article 5 (4) (art. 5-4) or Article 6 (1) (art. 6-1) or possibly of
these two Articles (art. 5-4, art. 6-1) read in conjunction

22. The Applicant has stated, and it has not been disputed by the
Austrian Government, that the decisions relating to his detention on
remand were given after the prosecuting authority had been heard in
the absence of the Applicant or his legal representative on the
written request made by them. The Court is inclined to take the view
that such a procedure is contrary to the principle of "equality of
arms" which the Commission, in several decisions and opinions, has
rightly stated to be included in the notion of fair trial (procs
quitable) mentioned in Article 6 (1) (art. 6-1). The Court does not
consider however that this principle is applicable to the examination
of requests for provisional release.

23. Certain members of the Commission have found in favour of the
opposing view, expressing the opinion that such requests relate to
"civil rights and obligations" and that any case relating to those
rights must under Article 6 (1) (art. 6-1) be given a fair hearing.

This argument does not seem to be well founded. Quite apart from the
excessively wide scope it gives to the concept of "civil rights", the
limits of which the Commission has sought to fix on a number of
occasions, it must be observed that remedies relating to detention on
remand undoubtedly belong to the realm of criminal law and that the
text of the provision invoked expressly limits the requirement of a
fair hearing to the determination ... of any criminal charge, to which
notion the remedies in question are obviously unrelated.

Besides, Article 6 (1) (art. 6-1) does not merely require that the
hearing should be fair, but also that it should be public. It is
therefore impossible to maintain that the first requirement is
applicable to the examination of requests for release without
admitting the same to be true of the second. Publicity in such
matters is not however in the interest of accused persons as it is
generally understood.

24. Nor is it possible to justify application of the principle of
"equality of arms" to proceedings against detention on remand by
invoking Article 5 (4) (art. 5-4) which, while requiring that such
proceedings shall be allowed, stipulates that they should be taken
before a "court". This term implies only that the authority called
upon to decide thereon must possess a judicial character, that is to
say, be independent both of the executive and of the parties to the
case; it in no way relates to the procedure to be followed. In
addition, the provision in question also lays down that such remedies
must be determined "speedily" (the French text uses the somewhat less
expressive term " bref dlai"). This clearly indicates what the main
concern must be in this matter. Full written proceedings or an oral
hearing of the parties in the examination of such remedies would be a
source of delay which it is important to avoid in this field.

25. For these reasons the Court finds that the procedure followed by
the Austrian courts in examining the Applicant's requests for
provisional release has contravened neither Article 5 (4) (art. 5-4)
nor Article 6 (1) (art. 6-1) of the Convention.

FOR THESE REASONS, THE COURT

Holds unanimously that there has been a breach of Article 5 (3)
(art. 5-3) of the Convention;

Holds by five votes to two that there has been no breach of
Article 6 (1) (art. 6-1) of the Convention as regards the length of
the proceedings against the Applicant;

Holds unanimously that there has been no breach of Article 5 (4)
(art. 5-4) or Article 6 (1) (art. 6-1) of the Convention as to the
procedure followed in examining the requests for provisional release
lodged by F. Neumeister; and

Decides, accordingly, that the facts of the case disclose, on one of
the three points at issue, a breach by the Republic of Austria of its
obligations arising from the Convention.

Done in French and in English, the French text being authentic, at the
Human Rights Building, Strasbourg, this twenty-seventh day of June,
one thousand nine hundred and sixty-eight.

Signed : H. ROLIN
President

Signed : M.-A. EISSEN
Deputy Registrar
on behalf of the Registrar

MM. A. Holmbäck and M. Zekia, Judges, consider that there was a breach
of Article 6 (1) (art. 6-1) of the Convention as regards the length of the
proceedings against the Applicant. Availing themselves of the right
under the terms of Article 51 (2) (art. 51-2) of the Convention
and Rule 50 (2), of the Rules of Court, they annex their dissenting
opinions to the present judgment.

Initialled : H. R.

Initialled : M.-A. E.

07-19-2009, 12:51 AM
DISSENTING OPINION OF JUDGE HOLMBÄCK

As the Court has stated in the Judgment, the period to be taken into
consideration for verifying whether or not the reasonable time
referred to in Article 6 (1) (art. 6-1) has been observed in the
Neumeister case began on 23 February 1961. Then, as the hearing in
the case was opened on 9 November 1964 the period lasted for more than
three years and eight months. In my opinion that period was too long
and therefore I agree with the Commission (Report of 27 May 1966, six
votes with the President's casting vote to six) that Article 6 (1)
(art. 6-1) was violated in the case. On 18 June 1965 the trial was
adjourned and the case returned to the Investigating Judge. The trial
was resumed before the court on 4 December 1967. The material brought
before the Court is, in my view, not sufficient for an opinion to be
formed as to whether this further delay also implies a violation of
Article 6 (1) (art. 6-1) of the Convention.

INDIVIDUAL DISSENTING OPINION OF JUDGE ZEKIA

I was unable to share the opinion of my learned colleagues in their
coming to the conclusion that in the Neumeister case there was no
contravention of Article 6 (1) (art. 6-1) of the European Convention
on Human Rights on the part of the Austrian authorities.

I propose to deal shortly with my reasons of dissent. A statement of
facts as well as of arguments and submissions, covering those also
relevant to Article 6 (1) (art. 6-1) of the Convention, having been
embodied in the main Judgment of the Court already delivered I am
spared from going into them all over again.

Neumeister was charged on 23 February 1961 with aggravated fraud under
relevant articles of the Austrian Penal Code. The fraud involved
several millions of schillings. The Applicant was kept in detention
for two periods totalling two years four months and twenty-one days.
The first period began on 24 February 1961, that is the day after he
was charged, and ended on 12 May 1961. The second period started on
12 July 1962 and came to an end on 6 September 1964. On the latter
date, he was released on bail. Proceedings before the trial court
substantially for the same offences with which he was originally
charged started on 9 November 1964 and after several months of sitting
the trial was adjourned sine die for further investigations. It was
reopened on 4 December 1967 and to this day the hearing of this case
has not been completed.

Over seven years have elapsed between the time Neumeister was
originally charged and he did not yet have a judgment of conviction or
acquittal.

Although the investigation was closed on 4 November 1963 the trial did
not begin until 9 November 1964 and for a period of fifteen months
prior to 1 November 1963 there appears to be a marked slackness on the
part of the investigating authorities.

Article 6 (1) (art. 6-1) reads "In the determination ... of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law". Paragraph 2 of the same Article
(art. 6-2) reads "Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law".

The words "within a reasonable time" occurring in the first paragraph
of Article 6 (art. 6-1) and the words "shall be presumed innocent"
appearing in the last-cited paragraph surely are not devoid of
practical significance.

This was undoubtedly an exceptionally complicated case necessitating
protracted investigations and long proceedings for the procurement of
evidence from abroad. A series of offences are alleged to have been
committed by the Applicant and a number of persons along with him are
implicated.

Notwithstanding the difficulties encountered in the preparation and
presentation of the case I am unable to persuade myself - even after
making certain allowances for the delays caused by the necessity for
these long investigations and the difficulties of procuring evidence -
that such a long interval and delay between the date Neumeister was
originally charged and the date of the conclusion of his trial, the
date of which is not yet known, could be considered as compatible with
the letter and spirit of Article 6 (1) (art. 6-1) of the Convention
just cited.

In a democratic society, to keep a man in suspense and in mental agony
for seven years and over, in a state of uncertainty and not knowing
what would befall him, with the consequential hardships to him and to
his family in business and society, in my view, constitutes a clear
violation of the right guaranteed to him under Article 6 (1)
(art. 6-1) referred to. Undoubtedly it is desirable, and the
administration of justice also demands it that a court should
endeavour to get the truth and the whole truth specially in a criminal
case, but with extremely belated proceedings in this direction, it is
highly questionable whether they defeat or serve the ends of justice.
It would be better in such cases to rule in favour of the individual
if there exists a doubt in the minds of the Court.

I entertain therefore no doubt that in the circumstances of this case,
the Austrian authorities violated Article 6 (1) (art. 6-1)
of the Convention.