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Austrian legislation allows the courts to pass sentences lower than
the usual minimum, provided there are extenuating circumstances.

In view more particularly of this last possibility, of which Austrian
courts are said to make plentiful use in practice, the Commission
considers that the length of Neumeister's detention is close to the
likely sentence in case of conviction. It also observes that under
Section 55 (a) of the Austrian Criminal Code, the period of detention
is as a rule to be counted as part of the sentence. However, the
Commission does not view this as a factor likely to affect the
judgment, in the light of the second criterion, as to whether the
length of detention is reasonable; in this connection it stresses the
uncertainty in which the prisoner has to live pending judgment.

All in all, therefore, application of the second criterion is thought
to indicate that the Applicant's detention lasted longer than was
reasonable.

7. The third criterion is said to point the same way, since
Neumeister suffered professionally and financially to an unusual
degree as a result of his detention.

8. With regard to the fourth criterion, the Commission finds that the
Applicant does not appear to have prolonged the investigation unduly
by his attitude. Of course he did not help shorten it, either, since
he continually protested his innocence, but in doing so he was
entirely within his rights. Neither does the Commission consider that
the fact that he lodged a series of applications and availed himself
of other remedies, in accordance with the law, indicates any intention
on his part to delay proceedings abusively. His actions may, to be
sure, have interrupted or slowed down the work of the Investigating
Judge and the Public Prosecution by obliging them to forward the case
record to the competent courts, but the Commission points out that
there are in such cases technical means of ensuring uninterrupted work
on the prosecution - for instance by making copies of the necessary
documents.

9. In the Commission's view, the case in question was an exceedingly
complicated one by reason of the nature, range and multiplicity of the
transactions in question, their foreign ramifications and the number
of accused and witnesses. Thus the fifth criterion would seem to
justify a long period of detention. The Commission thinks however
that the continued holding of Neumeister in detention cannot be
explained by the difficulties of the preliminary investigation after
it had been closed on 4 November 1963.

10. With regard to the sixth criterion, the Commission begins by
analysing the provisions of Austrian law governing the preliminary
investigation, in particular the distribution of cases among examining
judges (Sections 83 (2) and 87 (3) of the Constitution, Section 18 of
the Code of Criminal Procedure, Section 4 (2) of the
"Gerichtsverfassungsnovelle" and Sections 17-19 of the
"Geschäftsordnung für die Gerichtshöfe Erster und Zweiter Instanz");
it then examines the course of the investigation of the Applicant's
case. It does not find that the competent organs neglected their
duties or in any other similar way prolonged Neumeister's detention,
but it considers that the working of the system in force caused
certain delays, since the Investigating Judge had to deal with several
very bulky and complicated cases at the same time. The Commission
remarks that it has experienced some difficulty in finding out whether
the allocation of cases can under Austrian law be changed once the
annual distribution has been established. It points out that, while
the Government denies that this can be done, the judge responsible for
investigating the Matznetter case, which is also pending before the
Court, was temporarily relieved of other cases. However, the
Commission does not think it necessary to go further into the
question: it is a general principle of international law that a State
cannot invoke its own legislation to justify failure to fulfil its
treaty obligations. The Commission therefore sees no reason to
investigate whether the delays it has found to have occurred are the
result of a legal obstacle or of failure to apply clauses by which
they could have been avoided.
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