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arrest and by refusing for a long time to release him either on
parole, as in 1961, or even against adequate security. Neumeister
also complained that they had delayed in obtaining information on his
means before fixing the amount of bail; he maintained that
Article 5 (3) (art. 5-3) in fine of the Convention precluded the
stipulation of such a large amount of bail that the prisoner's release
became impossible in practice. He further alleged - while protesting
his innocence - that the length of his detention was out of proportion
to the sentence he could expect if he were convicted: according to
him, the sentence could not exceed twenty months, or at the most two
years on the extreme hypothesis that the principal accused,
Lothar Rafael, received the maximum provided by law. Without
disputing the difficulties of the investigation, Neumeister remarked
that the most complicated part of it concerned a textiles case with
which he had nothing whatever to do; he added that the Investigating
Judge had not heard him since 21 January 1963. His detention on
remand was said to have caused him grave moral harm and material loss
and greatly hampered the preparation of his defence.

In his original application in July 1963, Neumeister affirmed that the
Investigating Judge, having to deal simultaneously with several large
cases, including that of Stögmüller, was unable to complete his task
within a reasonable time as provided in Articles 5 (3) and 6 (1)
(art. 5-3, art. 6-1). Neumeister does not appear to have invoked the
latter provision subsequently on the point in question.

Lastly, according to the Applicant, the procedure in Austria for
considering applications for release pending trial (Sections 113 (2)
and 114 (2) of the Code of Criminal Procedure) is not in accordance
with the principle of "equality of arms" (Waffengleichheit)
safeguarded by Article 6 (1) (art. 6-1) of the Convention. Here
Neumeister referred to the opinions expressed by the Commission in the
Pataki and Dunshirn cases (Applications 596/59 and 789/60). He also
maintained that a judicial organ that followed the procedure in
question could not pass for a "court" within the meaning of
Article 5 (4) (art. 5-4).

31. After the failure of the attempt to arrange a friendly settlement
made by the Sub-Commission, the plenary Commission drew up a report as
required by Article 31 (art. 31) of the Convention. The Report was
adopted on 27 May 1966 and transmitted to the Committee of Ministers
of the Council of Europe on 17 August 1966. The Commission expressed
therein the following opinion which it later confirmed before the
Court:

(a) by eleven votes against one vote: the detention of the Applicant
lasted beyond a "reasonable time", with the consequence that there
was, in the case, a violation of Article 5 (3) (art. 5-3) of the
Convention;

(b) by six votes against six votes with the President's casting vote
(Rule 29 (3) of the Rules of Procedure of the Commission):
Neumeister's case was not heard "within a reasonable time" within the
meaning of Article 6 (1) (art. 6-1);

(c) by eight votes against two votes, with two abstentions: the
proceedings regarding the Applicant's release complied with
Articles 5 (4) and 6 (1) (art. 5-4, art. 6-1).

The Report contains several individual opinions, some concurring, some
dissenting.

Arguments of the Commission and the Government

1. In the Commission's view, Article 5 (3) (art. 5-3) of the
Convention secures the right of every person detained in accordance
with Article 5 (1) (c) (art. 5-1-c) either to release pending trial or
to trial within a reasonable time. If a person detained on remand is
provisionally released, then Article 5 (3) (art. 5-3) is thereby
complied with as regards the future; if he is not released, he must be
tried within a reasonable time. The Commission infers that detention
must not be prolonged beyond a reasonable period. The most important
problem, then, is said to be to interpret the words "reasonable time".
The Commission finds the term vague and lacking in precision; thus its
exact significance can be judged only in the light of the facts of the
case, not "in abstracto".

2. In order to facilitate such evaluation, the Commission believes
that it is in general necessary to examine an individual case
according to the following seven "criteria", "factors" or "elements":

(i) The actual length of detention. The Commission does not mean by
this to set an "absolute time-limit" to the length of detention.
Neither is it a question of measuring the length of detention by
itself; it is simply a matter of using it as one of the criteria for
determining whether that length is reasonable or unreasonable.

(ii) The length of detention in relation to the nature of the offence,
the penalty prescribed and to be expected in the event of conviction
and national legislation on the deduction of the period of detention
from any sentence passed. The Commission points out that the length
of detention may vary according to the nature of the offence, the
penalty prescribed and the likely penalty. Nevertheless, it considers
that, in judging the relationship between the penalty and the length
of detention, account must be taken of the principle of presumption of
innocence laid down in Article 6 (2) (art. 6-2) of the Convention. If
the period of detention were too similar in length to the sentence to
be expected in case of conviction, the principle of presumption of
innocence would not be entirely observed.

(iii) The material, moral or other effects of detention upon the
detained person beyond what are the normal consequences of detention.

(iv) The conduct of the accused:

(a) Did he contribute to the delay or expedition of the investigation
or trial?

(b) Were proceedings delayed by applications for release pending
trial, appeals or other remedies?

(c) Did he request release on bail or offer other guarantees to appear
for trial?

On this point the Commission considers that an accused who refuses to
co-operate with the investigating organs or who uses the remedies open
to him is thereby merely availing himself of his rights and should
therefore not be penalised for doing so unless he acts in an abusive
spirit or to an exaggerated extent.

With regard to the conduct of the other accused, the Commission
hesitates to accept that this can justify any prolongation of an
individual's detention.
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