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DISSENTING OPINION OF JUDGE HOLMBÄCK

As the Court has stated in the Judgment, the period to be taken into
consideration for verifying whether or not the reasonable time
referred to in Article 6 (1) (art. 6-1) has been observed in the
Neumeister case began on 23 February 1961. Then, as the hearing in
the case was opened on 9 November 1964 the period lasted for more than
three years and eight months. In my opinion that period was too long
and therefore I agree with the Commission (Report of 27 May 1966, six
votes with the President's casting vote to six) that Article 6 (1)
(art. 6-1) was violated in the case. On 18 June 1965 the trial was
adjourned and the case returned to the Investigating Judge. The trial
was resumed before the court on 4 December 1967. The material brought
before the Court is, in my view, not sufficient for an opinion to be
formed as to whether this further delay also implies a violation of
Article 6 (1) (art. 6-1) of the Convention.

INDIVIDUAL DISSENTING OPINION OF JUDGE ZEKIA

I was unable to share the opinion of my learned colleagues in their
coming to the conclusion that in the Neumeister case there was no
contravention of Article 6 (1) (art. 6-1) of the European Convention
on Human Rights on the part of the Austrian authorities.

I propose to deal shortly with my reasons of dissent. A statement of
facts as well as of arguments and submissions, covering those also
relevant to Article 6 (1) (art. 6-1) of the Convention, having been
embodied in the main Judgment of the Court already delivered I am
spared from going into them all over again.

Neumeister was charged on 23 February 1961 with aggravated fraud under
relevant articles of the Austrian Penal Code. The fraud involved
several millions of schillings. The Applicant was kept in detention
for two periods totalling two years four months and twenty-one days.
The first period began on 24 February 1961, that is the day after he
was charged, and ended on 12 May 1961. The second period started on
12 July 1962 and came to an end on 6 September 1964. On the latter
date, he was released on bail. Proceedings before the trial court
substantially for the same offences with which he was originally
charged started on 9 November 1964 and after several months of sitting
the trial was adjourned sine die for further investigations. It was
reopened on 4 December 1967 and to this day the hearing of this case
has not been completed.

Over seven years have elapsed between the time Neumeister was
originally charged and he did not yet have a judgment of conviction or
acquittal.

Although the investigation was closed on 4 November 1963 the trial did
not begin until 9 November 1964 and for a period of fifteen months
prior to 1 November 1963 there appears to be a marked slackness on the
part of the investigating authorities.

Article 6 (1) (art. 6-1) reads "In the determination ... of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law". Paragraph 2 of the same Article
(art. 6-2) reads "Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law".

The words "within a reasonable time" occurring in the first paragraph
of Article 6 (art. 6-1) and the words "shall be presumed innocent"
appearing in the last-cited paragraph surely are not devoid of
practical significance.

This was undoubtedly an exceptionally complicated case necessitating
protracted investigations and long proceedings for the procurement of
evidence from abroad. A series of offences are alleged to have been
committed by the Applicant and a number of persons along with him are
implicated.

Notwithstanding the difficulties encountered in the preparation and
presentation of the case I am unable to persuade myself - even after
making certain allowances for the delays caused by the necessity for
these long investigations and the difficulties of procuring evidence -
that such a long interval and delay between the date Neumeister was
originally charged and the date of the conclusion of his trial, the
date of which is not yet known, could be considered as compatible with
the letter and spirit of Article 6 (1) (art. 6-1) of the Convention
just cited.

In a democratic society, to keep a man in suspense and in mental agony
for seven years and over, in a state of uncertainty and not knowing
what would befall him, with the consequential hardships to him and to
his family in business and society, in my view, constitutes a clear
violation of the right guaranteed to him under Article 6 (1)
(art. 6-1) referred to. Undoubtedly it is desirable, and the
administration of justice also demands it that a court should
endeavour to get the truth and the whole truth specially in a criminal
case, but with extremely belated proceedings in this direction, it is
highly questionable whether they defeat or serve the ends of justice.
It would be better in such cases to rule in favour of the individual
if there exists a doubt in the minds of the Court.

I entertain therefore no doubt that in the circumstances of this case,
the Austrian authorities violated Article 6 (1) (art. 6-1)
of the Convention.
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