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

  1. #1

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

    In the "Neumeister" [align=left]
    case,

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

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

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

    decides as follows:

    PROCEDURE

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

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

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

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

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

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

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

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

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

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

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

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

    There appeared before the Court:

    - For the Commission:

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

    - for the Government:

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

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

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

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

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

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

    THE FACTS

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

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

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

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

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

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

    5. In conformity with the provisions of Austrian law (ständige
    Geschäftsverteilung) the conduct of the investigation and of the
    enquiry instigated by the Public Prosecution was automatically
    assigned, on 17 August 1959, to the investigating Judge, Dr. Leonhard,
    who had already, since 13 February 1959, been working on another large
    case involving fraud, the Stögmüller case.
    [/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. #2

    افتراضي

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    From these various circumstances the warrant deduced that there
    existed, in the case, a danger of flight (Fluchtgefahr), within the
    meaning of Section 175 (1) (2) of the Code of Criminal Procedure.
    [/align]
    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. #3

    افتراضي

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    The Investigating Judge rejected the request of 23 July 1963. He was
    of the opinion that the grounds stated in the decisions of
    31 July 1962, 10 September 1962, 27 December 1962 and 19 February 1963
    retained their relevance and that the documents in the file in
    substance corroborated Rafael's accusations against Neumeister.
    [/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. #4

    افتراضي

    [align=left]
    The latter then lodged with the Judge's Chamber of the Regional
    Criminal Court of Vienna, on 5 August 1963, an appeal in which he
    restated many of the arguments summarised above to which he added
    others, in particular the following:

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

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

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

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

    Neumeister further emphasised:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    20. In the execution of his task, the Investigating Judge had been
    aided by the Economic Police of Vienna, by the taxation department
    (Inspector Besau), by the Austrian railways and by the postal service
    administration; nevertheless, he had still encountered considerable
    difficulties.
    [/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. #5

    افتراضي

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

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

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

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

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

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

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

    For his part, Neumeister was accused of aggravated fraud
    (Sections 197, 200, 201 (a) and (d) and 203 of the Criminal Code) in
    ten groups of transactions relating to very different items: toilet
    soap, tools (cutters and welding bars), ladies' clothing (nylon
    stockings, skirts, blouses, etc.), gym shoes, leather and velvet
    goods, indoor lamps and running gear. The amount of loss for which he
    was called upon to answer exceeded 5,200,000 schillings. The loss
    attributed to the Applicant was the fourth highest of the accused,
    being less than that alleged to be caused by Rafael (more than
    35,100,000 schillings), Vollmann (about 31,900,000 schillings), and
    Huber (about 31,800,000 schillings), but more than that caused by
    Scherzer (more than 1,400,000 schillings), Brunner (more than
    1,250,000 schillings), Dachs (more than 1,100,000 schillings),
    Ackermann and Grommer (about 200,000 schillings). Some of the
    dealings did not concern him at all. This was the case, mainly with a
    large operation involving the export of textiles in which only Rafael,
    Huber and Vollmann were implicated (more than 25,700,000 schillings,
    pages 101-170 of the indictment).
    [/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. #6

    افتراضي

    [align=left]
    The Public Prosecution requested, inter alia, the opening of the trial
    before the Regional Criminal Court of Vienna, the calling of
    thirty-five witnesses and the reading of the affidavits of fifty-seven
    more.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    30. Invoking Article 5 (3) (art. 5-3), the Applicant maintained before
    the Commission and the Sub-Commission that his detention on remand had
    lasted longer than was reasonable. In support of his contention he
    repeated many of the arguments he had put forward before the
    Investigating Judge, the Judges' Chamber and the Court of Appeal of
    Vienna (see above). He also claimed that his second detention could
    be justified neither by the statements made about him by Lothar Rafael
    early in 1962 nor by the fact that Walter Vollmann had absconded; in
    particular he pointed out that Rafael's extradition
    (on 21 December 1961) had taken place more than six months before his
    own re-arrest (on 12 July 1962). According to the Applicant the
    position seemed in fact to be very much more in his favour at the time
    he lodged his Application (on 12 July 1963) than when he was first
    released (on 12 May 1961), this being due largely to his acquittal on
    29 March 1963 in the Customs fraud case and the substantial reduction
    in the amount of the loss for which he was said to be responsible in
    the case against Rafael and others. The competent legal authorities
    were said to have disregarded this change for the better by
    prohibiting the Applicant from going to Finland again,
    [/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. #7

    افتراضي

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

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

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

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

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

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

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

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

    Arguments of the Commission and the Government

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

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

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

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

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

    (iv) The conduct of the accused:

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

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

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

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

    With regard to the conduct of the other accused, the Commission
    hesitates to accept that this can justify any prolongation of an
    individual's detention.
    [/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. #8

    افتراضي

    [align=left]
    v) The difficulties in the investigation of the case (its complexity
    in respect of the facts or the number of witnesses or accused, the
    need to obtain evidence abroad, etc.).

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

    (a) the system of investigation applicable;

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

    (vii) The conduct of the judicial authorities:

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

    (b) in completing the trial.

    3. The Commission considers that a rational plan of this kind makes
    it possible to arrive at "a coherent interpretation without any
    appearance of arbitrariness". It also remarks that the opinion to be
    formulated in a particular dispute will be the result of an assessment
    of all the factors. It may in fact happen that the application of
    some criteria will tend to lead to the conclusion that a period of
    detention was reasonable, whereas other criteria will suggest the
    opposite and still others will not clearly point either way. The
    overall conclusion is said then to depend on the relative value and
    importance of the various factors; this does not rule out the
    possibility that one of them alone may carry decisive weight in some
    circumstances.
    [/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. #9

    افتراضي

    [align=left]
    The Commission adds that in the above criteria it has tried to cover
    all the situations of fact that habitually arise in cases concerning
    detention on remand, but that the list drawn up by it is by no means
    exhaustive as exceptional situations may justify the use of other
    criteria.

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

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

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

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

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

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

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

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

  10. #10

    افتراضي

    [align=left]
    Austrian legislation allows the courts to pass sentences lower than
    the usual minimum, provided there are extenuating circumstances.

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

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

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

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

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

    10. With regard to the sixth criterion, the Commission begins by
    analysing the provisions of Austrian law governing the preliminary
    investigation, in particular the distribution of cases among examining
    judges (Sections 83 (2) and 87 (3) of the Constitution, Section 18 of
    the Code of Criminal Procedure, Section 4 (2) of the
    "Gerichtsverfassungsnovelle" and Sections 17-19 of the
    "Geschäftsordnung für die Gerichtshöfe Erster und Zweiter Instanz");
    it then examines the course of the investigation of the Applicant's
    case. It does not find that the competent organs neglected their
    duties or in any other similar way prolonged Neumeister's detention,
    but it considers that the working of the system in force caused
    certain delays, since the Investigating Judge had to deal with several
    very bulky and complicated cases at the same time. The Commission
    remarks that it has experienced some difficulty in finding out whether
    the allocation of cases can under Austrian law be changed once the
    annual distribution has been established. It points out that, while
    the Government denies that this can be done, the judge responsible for
    investigating the Matznetter case, which is also pending before the
    Court, was temporarily relieved of other cases. However, the
    Commission does not think it necessary to go further into the
    question: it is a general principle of international law that a State
    cannot invoke its own legislation to justify failure to fulfil its
    treaty obligations. The Commission therefore sees no reason to
    investigate whether the delays it has found to have occurred are the
    result of a legal obstacle or of failure to apply clauses by which
    they could have been avoided.
    [/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 1 من 2 12 الأخيرةالأخيرة

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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