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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" ("... décidera ... du bien-fondé 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.
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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.
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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.
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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 "jugée" ("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.
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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 caractère 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.
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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.
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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.
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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 (procès
équitable) 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 "à bref délai"). 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.
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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.
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