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

In the "Neumeister" [align=left]
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. René 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 für 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
(Ausfuhrhändlervergütung and Ausfuhrvergütung) 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 Stögmüller case.
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[align=left]
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.
[/align]

[align=left]
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.
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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).
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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 (Bürgen), 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,
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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 Stögmüller, 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.
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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.
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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;
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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 für 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.
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