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For the purpose of determining whether a period of time is
"reasonable" the Commission considers that several of the criteria it
applies in connection with Article 5 (3) (art. 5-3) (the first,
fourth, fifth, sixth and both parts of the seventh) also have a
bearing, mutatis mutandis, on Article 6 (1) (art. 6-1).

The Commission holds, in short, by six votes - including its
President's casting vote - to six, that Neumeister was not heard
within a reasonable time and that Article 6 (1) (art. 6-1) has thus
not been observed in this respect. It does not attach great weight to
the fact that Neumeister hardly complained at all on this score: it
believes that it is competent to consider any point of law that seems
to it to arise from the facts of an application, and if necessary to
do so in relation to an article of the Convention not expressly
invoked by the Applicant; this is said to be borne out by its previous
practice and by Rule 41 (1) (d) of its Rules of Procedure.

14. In the Commission's view, the procedure in Austria for
considering applications for release pending trial lies outside the
scope of Article 6 (1) (art. 6-1) of the Convention, for it is
concerned with the determination neither of a "criminal charge"
(unanimous vote) nor of "civil rights and obligations" (seven votes to
five). Unlike the Government (see below), the Commission does not
think that Article 6 (art. 6) leaves it to the municipal law of each
Contracting State to define the words quoted above. However, it does
not feel able to interpret them broadly enough to cover the procedure
in question. With the intention of explaining its views on the
autonomous concept of "civil rights and obligations", it refers in
particular to the "travaux preparatoires" on the Convention and its
own earlier rulings.

The Commission thinks it can be maintained that Article 5 (4)
(art. 5-4) of the Convention, in stipulating that the lawfulness of
detention shall be decided by a court, demands respect for certain
fundamental principles. However, it does not find the procedure laid
down in Sections 113 and 114 of the Austrian Code of Criminal
Procedure to be contrary to that requirement (seven votes to five).

The Commission concludes, by eight votes to two with two abstentions,
that the proceedings on Neumeister's release involved no violation of
either Article 5 (4) (art. 5-4) or Article 6 (1) (art. 6-1).

15. The Commission draws the Court's attention to the individual
opinions - some concurring and some dissenting - expressed in its
Report by certain of its members with regard to the various questions
that arise in this case.

16. At the hearing of 12 February 1968, the Commission made the
following submissions:

"May it please the Court:

To decide:

(1) Whether or not Article 5 (3) (art. 5-3) of the Convention has been
violated by the detention of Fritz Neumeister from 12 July 1962 to
16 September 1964.

(2) Whether or not Article 6 (1) (art. 6-1) of the Convention has been
violated by the non-completion of the criminal proceedings instituted
against Fritz Neumeister as from 21 January 1960 when he was first
heard by the Investigating Judge as being suspected of the criminal
offences concerned, or from any later date.

(3) Whether or not Article 6 (1) (art. 6-1) or Article 5 (4)
(art. 5-4), or the two provisions combined, have been violated by the
procedure followed under Sections 113 and 114 of the Austrian Code of
Criminal Procedure with respect to appeals lodged by Fritz Neumeister
against his detention pending trial."

17. According to the Government the Commission's opinion, as
expressed in its Report, that the Republic of Austria has violated
Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1) in Neumeister's case is
based on faulty fact-finding and an erroneous interpretation of the
Convention.

18. With regard to the interpretation of Article 5 (3) (art. 5-3)
and its application to the present case, the Government contests first
of all the method adopted by the Commission. The literal meaning of
the word "reasonable" ("raisonnable") is said to show clearly that the
question whether the length of detention on remand was excessive can
be settled only in the light of the circumstances of the case and not
on the basis of a set of preconceived "criteria", "elements" or
"factors". It is maintained that this opinion is in accordance with
the Commission's previous practice and the intentions of the drafters
of Article 5 (3) (art. 5-3). The Government moreover thinks that the
system of criminal procedure of the State concerned is of great
importance in this context. In its view, the authors of the
Convention were convinced that the two systems of criminal procedure
- the Anglo-American and the Continental - in force in the member
States of the Council of Europe were entirely in harmony with the
Convention, despite the profound differences between them. The
Government deduces that Article 5 (3) (art. 5-3) is not to be
considered from the angle of just one given legal system. It is said
to follow that an examination of whether or not the length of a
detention pending trial was "reasonable" must never ignore the "common
standard" of that legal system to which the High Contracting Party
concerned belongs. According to the Government, a decision that the
Convention was not respected in Neumeister's case would mean
indirectly that the Austrian law of criminal procedure is not in
accordance with the principles of the Convention, whereas in fact it
is very similar to that of most other countries on the continent of
Europe.

The Government also complains that the Commission's fact-finding was
carried out in the light of the criteria chosen by itself. It
maintains that the Commission, starting from a preconceived legal
position, based its opinion not on all the facts of the case but only
on those facts which it needed to answer certain questions on which it
considered the solution to the legal problem to depend. In so doing
it failed to establish or evaluate several important facts.

19. The Government also set against the Commission's reasoning the
following considerations, which are said to demonstrate the absence of
any violation of Article 5 (3) (art. 5-3).

20. To the first of the seven "criteria", namely the actual length of
detention, the Government raises objections of principle. In its
opinion, this "criterion" tends to bring into the Convention an
absolute limit on the length of detention on remand, which is
precisely what the Contracting Parties sought to avoid by using the
words "reasonable time". Moreover, on closer examination, it is not a
true criterion, for it prejudges the conclusion to which the other
criteria are supposed to lead. In any case, the Commission did not
adopt it in its previous decisions.

The Government furthermore considers that the Application is concerned
only with the period spent by Neumeister in detention before he lodged
his Application with the Commission (12 July 1963). By taking into
account the period of time up to his release pending trial
(16 September 1964) the Commission is said to have exceeded the
competence conferred upon it by Articles 24-31 of the Convention
(art. 24, art. 25, art. 26, art. 27, art. 28, art. 29, art. 30,
art. 31).

As a subsidiary argument the Government submits that the period
subsequent to 8 January 1964, when the Judges' Chamber for the first
time agreed in principle to release Neumeister on bail, cannot be
taken into consideration. In its view such an offer of release meets
the requirements of Article 5 (3) (art. 5-3). If an individual,
either because he does not agree to provide, or is unable to provide,
the guarantee demanded, does not avail himself of the offer, then, in
the Government's view, he forfeits the right to trial within a
reasonable time. Besides, Article 5 (3) (art. 5-3) contains no
express provision against demanding "excessive" guarantees from
detainees; it follows that the drafters of the Convention did not
intend to place any obligation on States in this respect.

21. Neither does the Government share the opinion expressed by the
Commission with regard to the second criterion. In applying it the
Commission is said to have engaged in speculation on the sentence
likely to be passed on the Applicant - unavoidably, since he has not
yet been convicted. This speculation, it is argued, is based both on
an erroneous evaluation of those facts that are considered established
and also on faulty fact-finding. Thus the assumption that an Austrian
court has the option of passing a sentence below the legal minimum
where there are extenuating circumstances is inaccurate in the
unconditional form the Commission allegedly gives to it.
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