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20. That more than seven years have already elapsed since the laying
of charges without any determination of them having yet been made in a
judgment convicting or acquitting the accused, certainly indicates an
exceptionally long period which in most cases should be considered as
exceeding the reasonable time laid down in Article 6 (1) (art. 6-1).

Moreover, an examination of the table by the Austrian Government of
the activities of the Investigating Judge between 12 July 1962 and the
close of the investigation on 4 November 1963 (Appendix IV of the
Commission's Report), gives rise to serious disquiet. Not only was
there during those fifteen months, as the Court has already noted
(para. 8), no interrogation of Neumeister nor any confrontation of any
importance with the other accused persons whose statements are said to
have caused the Applicant's second arrest, but between 24 June 1963
and 18 September of the same year, the Judge did not interrogate any
of the numerous co-accused or any witness, nor did he proceed to any
other measure of investigation.

Lastly, it is indeed disappointing that the trial was not able to
commence before 9 November 1964, that is a year after the closing of
the investigation, and even more disappointing that, following such a
long investigation, the trial court was compelled, after sitting for
several months, to order further investigations which were not all
caused by the statements of the accused Huber, who had remained silent
until the trial.

21. The Court does not however consider these various facts
sufficient to warrant the conclusion that the reasonable time laid
down in Article 6 (1) (art. 6-1) of the Convention was exceeded in the
present case.

It is beyond doubt that the Neumeister case was of extraordinary
complexity by reason of the circumstances mentioned above (statement
of the facts, para. 20). It is, for example, not possible to hold the
Austrian judicial authorities responsible for the difficulties they
encountered abroad in obtaining the execution of their numerous
letters rogatory (arguments of the Government, para. 24). The need to
wait for replies probably explains the delay in closing the
investigation, despite the fact that no further measures of
investigation remained to be conducted in Austria.

The course of the investigation would probably have been accelerated
had the Applicant's case been severed from those of his co-accused,
but nothing suggests that such a severance would here have been
compatible with the good administration of justice (arguments of the
Government, section 25 in fine).

Neither does the Court believe that the course of the investigation
would have been accelerated, if it had been allocated to more than one
judge, even supposing that this had been legally possible. It also
notes that, although the designated Judge could not in fact be
relieved of the financial cases of which he had been seized before
1959, many other cases which would normally have fallen to him after
this date were assigned to other judges (arguments of the Government,
para. 25).

It should moreover be pointed out that a concern for speed cannot
dispense those judges who in the system of criminal procedure in force
on the continent of Europe are responsible for the investigation or
the conduct of the trial from taking every measure likely to throw
light on the truth or falsehood of the charges (Grundsatz der
amtswegigen Wahrheitserforschung).

Finally, it is obvious that the delays in opening and reopening the
hearing were in large part caused by the need to give the legal
representatives of the parties and also the judges sitting on the case
time to acquaint themselves with the case record, which comprised
twenty-one volumes of about five hundred pages each as well as a large
number of other documents (statement of the facts, para. 19).

C. The question whether there has been violation of the principle of
"equality of arms" in the examination of Neumeister's requests for
release and whether there has in consequence been a violation of
Article 5 (4) (art. 5-4) or Article 6 (1) (art. 6-1) or possibly of
these two Articles (art. 5-4, art. 6-1) read in conjunction

22. The Applicant has stated, and it has not been disputed by the
Austrian Government, that the decisions relating to his detention on
remand were given after the prosecuting authority had been heard in
the absence of the Applicant or his legal representative on the
written request made by them. The Court is inclined to take the view
that such a procedure is contrary to the principle of "equality of
arms" which the Commission, in several decisions and opinions, has
rightly stated to be included in the notion of fair trial (procès
équitable) mentioned in Article 6 (1) (art. 6-1). The Court does not
consider however that this principle is applicable to the examination
of requests for provisional release.

23. Certain members of the Commission have found in favour of the
opposing view, expressing the opinion that such requests relate to
"civil rights and obligations" and that any case relating to those
rights must under Article 6 (1) (art. 6-1) be given a fair hearing.

This argument does not seem to be well founded. Quite apart from the
excessively wide scope it gives to the concept of "civil rights", the
limits of which the Commission has sought to fix on a number of
occasions, it must be observed that remedies relating to detention on
remand undoubtedly belong to the realm of criminal law and that the
text of the provision invoked expressly limits the requirement of a
fair hearing to the determination ... of any criminal charge, to which
notion the remedies in question are obviously unrelated.

Besides, Article 6 (1) (art. 6-1) does not merely require that the
hearing should be fair, but also that it should be public. It is
therefore impossible to maintain that the first requirement is
applicable to the examination of requests for release without
admitting the same to be true of the second. Publicity in such
matters is not however in the interest of accused persons as it is
generally understood.

24. Nor is it possible to justify application of the principle of
"equality of arms" to proceedings against detention on remand by
invoking Article 5 (4) (art. 5-4) which, while requiring that such
proceedings shall be allowed, stipulates that they should be taken
before a "court". This term implies only that the authority called
upon to decide thereon must possess a judicial character, that is to
say, be independent both of the executive and of the parties to the
case; it in no way relates to the procedure to be followed. In
addition, the provision in question also lays down that such remedies
must be determined "speedily" (the French text uses the somewhat less
expressive term "à bref délai"). This clearly indicates what the main
concern must be in this matter. Full written proceedings or an oral
hearing of the parties in the examination of such remedies would be a
source of delay which it is important to avoid in this field.

25. For these reasons the Court finds that the procedure followed by
the Austrian courts in examining the Applicant's requests for
provisional release has contravened neither Article 5 (4) (art. 5-4)
nor Article 6 (1) (art. 6-1) of the Convention.

FOR THESE REASONS, THE COURT

Holds unanimously that there has been a breach of Article 5 (3)
(art. 5-3) of the Convention;

Holds by five votes to two that there has been no breach of
Article 6 (1) (art. 6-1) of the Convention as regards the length of
the proceedings against the Applicant;

Holds unanimously that there has been no breach of Article 5 (4)
(art. 5-4) or Article 6 (1) (art. 6-1) of the Convention as to the
procedure followed in examining the requests for provisional release
lodged by F. Neumeister; and

Decides, accordingly, that the facts of the case disclose, on one of
the three points at issue, a breach by the Republic of Austria of its
obligations arising from the Convention.

Done in French and in English, the French text being authentic, at the
Human Rights Building, Strasbourg, this twenty-seventh day of June,
one thousand nine hundred and sixty-eight.

Signed : H. ROLIN
President

Signed : M.-A. EISSEN
Deputy Registrar
on behalf of the Registrar

MM. A. Holmbäck and M. Zekia, Judges, consider that there was a breach
of Article 6 (1) (art. 6-1) of the Convention as regards the length of the
proceedings against the Applicant. Availing themselves of the right
under the terms of Article 51 (2) (art. 51-2) of the Convention
and Rule 50 (2), of the Rules of Court, they annex their dissenting
opinions to the present judgment.

Initialled : H. R.

Initialled : M.-A. E.
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