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Lastly, the Government complains that the Commission merely states
that some of the criteria which it applied in relation to
Article 5 (3) (art. 5-3) also hold good for Article 6 (1) (art. 6-1),
without indicating what facts it considers more particularly relevant
in relation to the first or second provision.

29. On the question of the procedure in Austria for the consideration
of applications for release pending trial, the Government mainly
refers to the Commission's opinion that this procedure does not
infringe Article 6 (1) (art. 6-1) or Article 5 (4) (art. 5-4). It
remarks that it has always agreed with the restrictive interpretation
of the words "civil rights" ("droits de caractère civil") apparent in
all the Commission's decisions. It thinks however, unlike the
Commission, that the Convention leaves it to the municipal law of each
Contracting State to define these terms and that the States have no
common view on the matter. It asks the Court for a ruling on this
important question.

30. At the hearing of 13 February 1968, the Government made the
following submissions.

"(May it please the Court to) declare:

that the measures taken by the Austrian authorities, which are the
subject of the application lodged by Fritz Neumeister against the
Republic of Austria and of the Report of the European Commission of
Human Rights of 27 May 1966, according to Article 31 (art. 31), of
the European Convention on Human Rights, do not conflict with the
obligations arising from the said Convention."

AS TO THE LAW

1. The Court is called upon to decide whether Neumeister has been a
victim of violations of the Convention by the Austrian judicial
authorities with respect to the facts referred to in that part of his
Application of 12 July 1963 which the Commission declared admissible
on 6 July 1964. These facts relate to the length of detention of
Neumeister, who at the time of the filing of his Application had
already been detained without a break for a period of one year, to the
length of the proceedings against him and to the circumstances in
which his various requests for release were determined.

2. The provisions of the Convention which are relevant to the
examination of these questions are:

(a) as regards the length of Neumeister's detention on remand,
Article 5 (3) (art. 5-3);

(b) as regards the length of the proceedings against him,
Article 6 (1) (art. 6-1);

(c) as regards the failure to observe the principle of "equality of
arms" in the examination of his requests for release, Articles 5 (4)
and 6 (1) (art. 5-4, art. 6-1), or possibly these two Articles read in
conjunction.

A. The question whether the length of Neumeister's detention exceeded
the reasonable time laid down in Article 5 (3) (art. 5-3) of the
Convention

3. Under Article 5 (3) (art. 5-3) "everyone arrested or detained in
accordance with the provisions of paragraph 1 (c)" of that Article
(art. 5-1-c) "shall be entitled", inter alia, "to trial within a
reasonable time or to release pending trial"; it is also provided that
"release may be conditioned by guarantees to appear for trial".

4. The Court is of the opinion that this provision cannot be
understood as giving the judicial authorities a choice between either
bringing the accused to trial within a reasonable time or granting him
provisional release even subject to guarantees. The reasonableness of
the time spent by an accused person in detention up to the beginning
of the trial must be assessed in relation to the very fact of his
detention. Until conviction, he must be presumed innocent, and the
purpose of the provision under consideration is essentially to require
his provisional release once his continuing detention ceases to be
reasonable. This is, moreover, the intention behind the Austrian
legislation (Section 190 (1) of the Code of Criminal Procedure).

5. The Court is likewise of the opinion that, in determining in a
given case whether or not the detention of an accused person exceeds a
reasonable limit, it is for the national judicial authorities to seek
all the facts arguing for or against the existence of a genuine
requirement of public interest justifying a departure from the rule of
respect for individual liberty.

It is essentially on the basis of the reasons given in the decisions
on the applications for release pending trial, and of the true facts
mentioned by the Applicant in his appeals, that the Court is called
upon to decide whether or not there has been a violation of the
Convention.

6. In the present case Neumeister was subjected to two periods of
detention on remand, the first from 24 February 1961 to 12 May 1961,
lasting two months and seventeen days, and the second from
12 July 1962 to 16 September 1964, lasting two years, two months and
four days.

Admittedly the Court cannot consider whether or not the first period
was compatible with the Convention; for even supposing that in 1961
Neumeister availed himself of certain remedies and exhausted them, he
did not approach the Commission until 12 July 1963, that is to say,
after the six-month time-limit laid down in Article 26 (art. 26) of
the Convention had expired.

That period of detention nevertheless constituted a first departure
from respect for the liberty which Neumeister could in principle
claim. In the event of his being convicted, this first period would
normally be deducted from the term of imprisonment to which he would
be sentenced (Section 55 (a) of the Austrian Criminal Code); it would
thus reduce the actual length of imprisonment which might be expected.
It should therefore be taken into account in assessing the
reasonableness of his later detention. Moreover it is observed that
the Austrian Government has accepted that the period spent by
Neumeister in detention after his second arrest, on 12 July 1962,
should be taken into account by the Court, although his Application
was filed with the Commission more than six months after the final
decision on his first request for provisional release.

7. The Austrian Government, however, has argued that the Court could
not consider Neumeister's detention subsequent to 12 July 1963, the
day on which he filed his Application, as the Application could relate
only to facts that had taken place before this date.

The Court considers it cannot accept this view. In his Application of
12 July 1963 Neumeister complained not of an isolated act but rather
of a situation in which he had been for some time and which was to
last until it was ended by a decision granting him provisional
release, a decision which he sought in vain for a considerable time.
It would be excessively formalistic to demand that an Applicant
denouncing such a situation should file a new Application with the
Commission after each final decision rejecting a request for release.
This would pointlessly involve both the Commission and the Court in a
confusing multiplication of proceedings which would tend to paralyse
their working.
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