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24. On the fifth criterion, the Government agrees with the
Commission's conclusion. It considers however that the Commission has
not taken sufficiently into consideration the difficulties inherent in
the criminal proceedings in question (statement of the facts,
paragraph 20). It recalls that it was necessary to seek judicial
assistance abroad and to request the extradition of several accused.
Because of the size and complexity of the transactions in dispute the
enquiries and interrogations conducted outside Austria took a long
time and in some cases required the personal participation of the
Investigating Judge. Moreover, in some of the countries approached,
especially Switzerland, the request for legal assistance raised legal
problems, the solution of which also caused loss of time. The
Commission's report is said not to mention these facts, without which
neither the complexity of the case nor the obstacles encountered by
the Investigating Judge can be properly assessed. The Government
lastly regrets that here, too, the Commission has taken into
consideration only the number of other accused, not their conduct
during the proceedings.

25. With regard to the sixth criterion the facts found by the
Commission are said to be inadequate to justify its conclusion.

In the first place, the Commission is thought to have underestimated
the part played by the preliminary investigation in Austrian criminal
procedure. The Government points out that the object of the
"Voruntersuchung" is to establish the material facts. It follows that
in complicated and difficult criminal cases a fairly long preliminary
investigation and thus a fairly long detention on remand are often
inevitable.

The Commission is also said not to have evaluated the facts of the
case properly. It has, it is argued, worked on the assumption that it
would have been possible to release the Investigating Judge from all
other work so that he could devote himself solely to the investigation
of the Applicant's case. But under Austrian legislation
(Section 87 (3) of the Constitution, Section 18 of the Code of
Criminal Procedure, Section 34 (1) of the Judicature Act and Section
17 (5) of the Rules adopted by the Ministry of Justice for courts of
first and second Instance) the allocation of criminal cases cannot be
changed in the course of a year just because one judge is overworked.
However, the Government points out that the Presiding Judge and the
"Staff Chamber" (Personalsenat) of the Regional Criminal Court of
Vienna, anxious to lighten the burden on the Investigating Judge, on
many occasions allotted to other judges cases that normally should
have gone to him, taking full advantage of the law in force for that
purpose (between 1 and 30 June 1959, between 1 December 1960 and 31
May 1961, between 18 September 1961 and 31 July 1962, between 1
October and 31 December 1962 and between 15 May and 30 September
1963). The Investigating Judge, when heard by the Commission as a
witness, in fact stated that if he had not had to deal with several
cases at the same time, the investigation of the Neumeister case would
have been shortened but that the time saved would have been so minimal
as to be hardly worth mentioning.

In considering the attitude of the authorities responsible for the
investigation the Commission is said to have based its findings on the
evidence of the Investigating Judge by itself, without subsequently
evaluating it from a legal point of view. In the Government's
opinion, such an evaluation would have shown that the Judge and his
assistants had acted with the necessary care and diligence even
although some delay was inevitable, since two of the main accused had
escaped abroad and it was necessary to issue international "wanted"
notices in order to locate them.

In general terms the Government considers that no effort was spared to
hasten the investigation. It points out that the prosecutions
relating to certain acts or accused were severed or dropped under
Sections 57 (1) and 34 (2) of the Code of Criminal Procedure. It
thinks that nothing more could have been done in this respect than was
done. In its view, the various offences in dispute were so closely
inter-related that it was not possible to dissociate Neumeister's case
from the cases of the other accused. Moreover, to have done so would
have been contrary to the legal principle of connexity (Section 56 (1)
of the Code of Criminal Procedure) and would in fact have delayed the
proceedings, for the Court would have been obliged to compare the
allegations of all the accused in order to check their veracity.

26. With regard to the seventh criterion the Government states that
it is in no position to furnish any critical comment: it complains
that the Commission has completely failed to state the conclusions it
draws from the facts it considers to have found in its Report.

In particular, the Government maintains that the decision of
8 January 1964, making the Applicant's release subject to guarantees
of two million schillings was entirely in accordance with
Article 5 (3) (art. 5-3) of the Convention, since there was a danger
that he would abscond and since he had probably enriched himself
considerably as a result of the offences with which he is charged.

According to the Government the Commission could not have failed, if
it had correctly evaluated the relevant facts, to recognise that the
period of detention in dispute was reasonable.

27. From the foregoing, the Government concludes that, even if the
method chosen by the Commission is used, no violation of Article 5 (3)
(art. 5-3) can be detected in this case, for the arguments suggesting
that the period of detention was reasonable far outweigh those to the
contrary. This is said to be particularly true of criteria 4, 5 and 6,
the decisive ones in this case.

The Government expresses surprise that the Commission has not stated
on what date it thinks the length of Neumeister's detention to have
become excessive.

28. In the Government's view, the Commission has exceeded its
competence in considering whether or not Neumeister was heard within a
"reasonable time" as required by Article 6 (1) (art. 6-1) of the
Convention. The Applicant is said to have made no complaint in this
respect and the problem in question to have played no part at the
hearing in July 1964 on the admissibility of the Application.

Moreover, the Government considers that the words "reasonable time"
mean the same thing in both Articles in which they appear, namely
Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1).

The time to be considered in connection with Article 6 (1)
(art. 6-1) is said to have begun not with Neumeister's first
interrogation by the Investigating Judge (on 21 January 1960) but only
when the indictment was preferred (on 17 March 1964). The terms
"criminal charge" and "accusation" are in fact said to refer, in both
the Continental and the Anglo-American systems, to the legal act of
requesting the Court to rule on whether the allegation that an
individual has committed a punishable offence is well-founded. The
Government remarks that under the Austrian Code of Criminal Procedure,
only a person against whom an "Anklage" has been filed is entitled to
a hearing before an independent tribunal. In its view adoption of the
Commission's interpretation of the point would have results
incompatible with the aims of the Convention: the effect would be to
prevent the cessation of prosecution before the trial was opened,
whereas several national legal systems, in particular Sections 90, 189
and 227 of the Austrian Code of Criminal Procedure, allow this. Such
an interpretation would also conflict with paragraphs 3 (a) and 2 of
Article 6 (art. 6-3-a, art. 6-2): it is difficult to see how a person
against whom a mere enquiry or preliminary investigation
(Vorverhandlungen) is opened can be informed in detail "of the nature
and cause of the accusation against him"; as for the principle of
presumption of innocence, it is said to apply solely to an individual
against whom a criminal charge within the meaning of Article 6 (1)
(art. 6-1) has been brought - as indeed the Commission itself is
affirmed to have acknowledged on many occasions.

Neither does the Government share the opinion expressed by the
Commission that the time covered by Article 6 (1) (art. 6-1) runs at
least up to the determination of the criminal charge by the court of
first instance. It maintains that in fact that time comes to an end
as soon as the accused receives a "hearing", i.e. at the beginning of
the trial. On this point the Government stresses the contrast between
Article 6 (1) and Article 5 (3) (art. 6-1, art. 5-3), which contains
the word "jugée" ("trial" in the English text). It adds that in the
English version of Article 6 (1) (art. 6-1) the drafters of the
Convention would have used the words "for the determination" instead
of "in the determination" if their intention had really been to
require a decision to be reached on each charge within a reasonable
time.
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