23 ينويو 2014

د.اشرف شمس الدين

آخـــر الــمــواضــيــع

صفحة 2 من 2 الأولىالأولى 12
النتائج 11 إلى 19 من 19

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

  1. #11

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  2. #12

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  3. #13

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  4. #14

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  5. #15

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  6. #16

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  7. #17

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  8. #18

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  9. #19

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

صفحة 2 من 2 الأولىالأولى 12

المواضيع المتشابهه

  1. X. v. AUSTRIA - 3001/66 [1968] ECHR 10 (30 May 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 1
    آخر مشاركة: 07-19-2009, 12:39 AM
  2. X. v. THE FEDERAL REPUBLIC OF GERMANY - 2699/65 [1968] ECHR 9 (01 April 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 2
    آخر مشاركة: 07-19-2009, 12:37 AM
  3. TWENTY-ONE DETAINED PERSONS v. GERMANY - 3139/67 [1968] ECHR 15 (06 April 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:35 AM
  4. X. v. THE NETHERLANDS - 2648/65 [1968] ECHR 8 (06 February 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:29 AM
  5. X. v. BELGIUM - 2568/65 [1968] ECHR 6 (06 February 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:27 AM

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