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

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

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

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

decides as follows:

PROCEDURE

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

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

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

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

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

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

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

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

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

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

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

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

There appeared before the Court:

- For the Commission:

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

- for the Government:

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

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

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

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

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

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

THE FACTS

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

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

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

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

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

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

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