CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 juin 1968

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AUSTRIA   (Application n o 1936/63)                     JUDGMENT       STRASBOURG   27 June 1968   In the "Neumeister" case, The European Court of Human Rights, sitting in accordance with the provisions of Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention") and Rules 21, 22 and 23 of the Rules of Court as a Chamber composed of the following Judges:          Mr.   H. R O LIN, President and   MM.   A. HOLMBÄCK ,                G. BALLADORE PALLIERI ,                H. MOSLER ,                M. ZEKIA ,                S. BILGE ,                H. SCHIMA , ad hoc Judge and also Mr. M.-A. EISSEN , Deputy Registrar , decides as follows: PROCEDURE 1.   By a request dated 7 October 1966, the European Commission of Human Rights (hereinafter called "the Commission") referred to the Court the "Neumeister" case.   On 11 October 1966 the Government of the Republic of Austria (hereinafter called "the Government") also referred to the Court the said case the origin of which lies in an Application lodged with the Commission on 12 July 1963 by Fritz Neumeister, an Austrian national, against the Republic of Austria (Article 25 of the Convention) (art. 25). The Commission’s request, to which was attached the Report provided for by Article 31 (art. 31) of the Convention, and the Application of the Government were lodged with the Registry of the Court within the period of three months laid down in Articles 32 (1) and 47 (art. 32-1, art. 47).   They referred firstly to Articles 44 and 48 (art. 44, art. 48), and secondly to the Government’s declaration recognising the compulsory jurisdiction of the Court under Article 46 (art. 46) of the Convention. 2.   On 7 November 1966, Mr. René Cassin, President of the Court, drew by lot in the presence of the Deputy Registrar, the names of six of the seven Judges called upon to sit in the Chamber, Mr. Alfred Verdross, the elected Judge of Austrian nationality, being an ex officio member under Article 43 (art. 43) of the Convention; the President also drew by lot the names of three Substitute Judges. 3.   On 22 November the President of the Chamber ascertained the views of the Agent of the Government and of the Delegates of the Commission on the procedure to be followed.   By an Order of the same day, he decided that the Government should file a memorial within a time-limit expiring on 25 March 1967 and that, after having received the said memorial, the Commission would be at liberty to file a memorial within a time-limit to be fixed subsequently. On 10 March 1967, the President of the Chamber extended the time allowed to the Government until 1 May 1967.   On the same date he ruled that the Commission’s memorial in reply should be filed by 1 September 1967 at the latest. The Government’s memorial reached the Registry on 27 April 1967, and that of the Commission on 3 August 1967. 4.   By an Order of 12 October 1967, the President of the Chamber decided that the oral proceedings would open on 4 January 1968.   Giving effect to a request of the Government, the Chamber authorised the Agent, counsel and advisors of the former, on 24 November 1967, to use the German language in the oral proceedings, it being the responsibility of the Government to ensure the interpretation into French or English of their arguments or statements (Rule 27 (2) of the Rules of Court). On 18 December 1967, the Government submitted a request for the postponement of the hearing.   This request was not granted by the President of the Chamber but the sudden indisposition of two Judges caused him to issue an Order, on 4 January 1968 postponing the opening of the hearing until 12 February 1968. 5.   On 13 January 1968, the President of the Chamber instructed the Registrar to invite the Government and the Commission to present certain documents, which were added to the file on 23 January and 5 February 1968 respectively. 6.   One judge and one substitute Judge having informed the President of the Chamber that they were unable to attend the hearing, the President of the Court, on 17 January 1968, drew by lot the names of two Substitute Judges. As Mr. Verdross was unable to attend the hearing, the Government, on 12 February 1968, appointed to sit on this case as ad hoc Judge, Mr. Hans Schima, Emeritus Professor at the Faculty of Law of the University of Vienna, and member of the Austrian Academy of Sciences. 7.   Pursuant to the aforesaid Order of 4 January 1968, a public hearing was held at Strasbourg, in the Human Rights Building, on 12, 13 and 14 February 1968. There appeared before the Court: - for the Commission:   Mr. M. SØRENSEN ,                Principal Delegate , and   MM. C.T. EUSTATHIADES and J.E.S. FAWCETT ,           Delegates; - for the Government:   Mr. E. NETTEL , Legationssekretär at       the Federal Ministry of Foreign Affairs, Agent, assisted by   Mr. W.P. PAHR , Ministerialsekretär       at the Federal Chancellery, and   Mr. R. LINKE, Sektionsrat       at the Federal Ministry of Justice,     Counsel. The Court heard the statements and submissions of each of these representatives. On 13 February 1968, the Court asked the Agent of the Government and the representatives of the Commission a number of questions, to which they replied on 13 and 14 February 1968. On 14 February 1968, the President of the Chamber declared the hearing closed. 8.   On 14 and 15 February 1968, the Court invited the Government and the Commission to present a further series of documents, which were subsequently added to the file. 9.   After having deliberated in private the Court gave the present judgment. THE FACTS 1.   The object of the request of the Commission and the Application of the Government is that the Neumeister case should be referred to the Court, so that the latter may decide whether or not the facts indicate, on the part of the Republic of Austria, a violation of the obligations incumbent upon it under Articles 5 (3) and (4) and 6 (1) (art. 5-3, art. 5-4, art. 6-1) of the Convention. 2.   The facts of the case, as they appear from the Report of the Commission, the memorials, documents and evidence supplied, and the oral statements of the respective representatives of the Commission and the Government may be summarised as follows: 3.   Mr. Fritz Neumeister, an Austrian citizen born on 19 May 1922, is resident at Vienna where he was formerly the owner and director of a large transport firm, the "Internationales Transportkontor" or "ITEKA", which employed some two hundred persons. 4.   On 11 August 1959, the Vienna Public Prosecution (Staatsanwaltschaft) requested the Regional Criminal Court (Landesgericht für Strafsachen) of that city to open a preliminary investigation (Voruntersuchung), together with their immediate arrest, against five persons including Lothar Rafael, Herbert Huber and Franz Schmuckerschlag, and an enquiry (Vorerhebungen) concerning Fritz Neumeister and three other persons. On the previous day, the Revenue Office of the First District of Vienna had denounced (Anzeige) the parties in question before the Public Prosecution; it suspected some of having defrauded the exchequer by improperly obtaining, between the years 1952 and 1958, "reimbursement" which was designed to assist exports (Ausfuhrhändlervergütung and Ausfuhrvergütung) of more than 54.500,000 schillings in turnover tax (Umsatzsteuer), the others - Neumeister in particular - of having been involved in these transactions as accomplices (als Mitschuldige). In Austria, an act of this kind constitutes not merely a simple taxation offence but rather fraud (Betrug) within the meaning of Section 197 of the Austrian Criminal Code.   By the terms of Section 200, fraud becomes a felony (Verbrechen) if the amount of loss caused for the sum fraudulently obtained exceeds 1,500 schillings. The punishment incurred is "severe imprisonment" of from five to ten years if this amount exceeds 10,000 schillings, if the offender has shown "exceptional audacity or cunning" or if he has made a habit of defrauding. (Section 203).   These two amounts have since been altered: they are now 2,500 and 25,000 schillings respectively. 5.   In conformity with the provisions of Austrian law (ständige Geschäftsverteilung) the conduct of the investigation and of the enquiry instigated by the Public Prosecution was automatically assigned, on 17 August 1959, to the investigating Judge, Dr. Leonhard, who had already, since 13 February 1959, been working on another large case involving fraud, the Stögmüller case. 6.   On 21 January 1960, Neumeister appeared for the first time as a suspect ("Verdächtiger", in the Austrian sense of the word), before the Investigating Judge.   In the course of his interrogation, which lasted for an hour and a quarter, Neumeister became aware of the above-mentioned steps taken by the Public Prosecution; he protested his innocence, a position from which, it would seem, he has never since wavered. 7.   At the request of the Vienna Public Prosecution (22 February 1961), the Investigating Judge decided on 23 February 1961 to open a preliminary investigation concerning Neumeister’s activities and ordered that Neumeister be taken into detention on remand (Untersuchungshaft). In consequence Neumeister was, on the following day, placed in detention on remand in connection with the case involving Rafael and associates (24 a Vr 6101/59).   At the same time he was notified of his provisional release in a case involving customs frauds (No. 6 b Vr 8622/60) in respect of which he had been detained for some three weeks.   This other case is not in issue before the European Court of Human Rights; it ended with the acquittal of the eight accused on 29 March 1963 before the Regional Criminal Court of Vienna, this judgment being confirmed on 14 April 1964 by the Austrian Supreme Court (Oberster Gerichtshof). During his detention the applicant was interrogated as an accused ("Beschuldigter", in the Austrian sense of this word) on 27 February, 2 March, 18 to 21 April and 24 April 1961.   From the sixty-seven pages of minutes, it appears that the Investigating Judge informed him in detail of the statements concerning him made by several co-accused, including Franz Scherzer, Walter Vollmann (former director of the Iteka branch at Salzburg), Leopold Brunner and Lothar Rafael.   The last named of these had fled abroad but had written a letter of more than thirty pages to the Court in which he heavily implicated Neumeister.   The Applicant explained his conduct in detail; the interrogation generally took place in the presence of an inspector of taxes (Finanzoberrevisor), Mr. Besau. 8.   On 12 May 1961, Neumeister was provisionally released on parole: he gave the solemn undertaking (Gelöbnis) provided for by Section 191 of the Code of Criminal Procedure but was not required to deposit security.   The Public Prosecution unsuccessfully challenged this decision before the Vienna Court of Appeal (Oberlandesgericht). 9.   After his release, the Applicant resumed his professional activities.   In the course of the trial concerning the alleged customs frauds (6 b Vr 8622/60) he had been obliged to sell the ITEKA company, seemingly at an extremely low price - about 700,000 schillings payable in forty-eight monthly instalments - but he established a small transport company, the Scherzinger company, with three employees. In July 1961 Neumeister visited Finland, with the authorisation of the Investigating Judge, for a holiday with his wife and their three children.   At the beginning of February 1962 he made a trip to the Saar for several days, again with the permission of this Judge.   He asserts that throughout the period, which lasted until his second arrest (12 July 1962; para. 12 infra), he often visited the Investigating Judge of his own free will. 10.   Lothar Rafael was arrested at Paderborn (Federal Republic of Germany) on 22 June 1961 and was extradited to Austria on 21 December 1961, the Minister of Justice of North-Rhine Westphalia having acceded to the request of the Austrian authorities for Rafael’s extradition. In January 1962, lengthy interrogations of Rafael were conducted by the Vienna Economic Police (Wirtschaftspolizei), during which the former levelled grave accusations against Neumeister. 11.   Neumeister informed the Investigating Judge in the Spring of 1962 that he wished to visit Finland again to spend a holiday with his family during the month of July.   The Investigating Judge raised no objections at that time.   He is said later to have warned the Applicant that he would probably be confronted with Rafael in June but that it would in no way be necessary for him to give up his plans for a holiday abroad. On 3rd, 4th, 5th and 6th July 1962, Neumeister was interrogated by the Investigating Judge in the presence of the inspector of taxes, Mr. Besau.   On being informed of the statements relating to him made by various witnesses and accused, in particular those made by Rafael in January 1962, he strenuously contested them.   Fifty pages of minutes were noted on this occasion. The confrontation between Neumeister and Rafael took place before the Vienna Economic Police on 10 and 11 July 1962.   It appears from the twenty-two pages of minutes that Neumeister persisted in his denials. On the morning of 12 July, the Investigating Judge informed Neumeister that his departure for Finland, planned for 15 July, met with the opposition of the Public Prosecution.   When heard as a witness, on 7 July 1965, by a Sub-Commission of the European Commission of Human Rights, he gave the following fuller particulars on this point: "What I am going to say now is rather more difficult for me.   My own intuition convinced me that Mr. Neumeister would come back from his trip to Finland.   Mr. President, members of the Commission, you know that a judge cannot let himself be ruled only by intuition; he must be guided solely by the law.   Since no treaty on judicial assistance or extradition exists as such between Austria and Finland, the law obliged me not to yield to my intuition that Neumeister would return. I know that I said to Mr. Neumeister then: ‘My feeling tells me that you will come back; but I cannot personally give you permission without the approval of the prosecuting authority’.   This approval was then refused." The Applicant, for his part, alleged before the Sub-Commission that the Investigating Judge had given him permission to go to Finland despite the wish of the Public Prosecution that he should not. 12.   Be this as it may, on the same day, 12 July 1961, at the request of the Public Prosecution, the Investigating Judge ordered Neumeister’s arrest. The warrant (Haftbefehl) indicated first that Neumeister was suspected of having committed, between 1952 and 1957 and in consort with Lothar Rafael and other suspects, a series of fraudulent transactions which had caused the State a loss of some ten million schillings.   It added that Neumeister, being fully aware of the charges assembled against him since his release (12 May 1961), must anticipate a heavy punishment; that his former employee, Walter Vollmann, for whom the results of the investigation had been less heavily incriminating, had nevertheless evaded prosecution by absconding; that the recent interrogations of the Applicant and his confrontation with Rafael had shown to him beyond any doubt that he would now be obliged to relinquish his attitude of total denial; that he intended to take his holidays abroad and that the withdrawal of his passport would not have offered an adequate safeguard, the possession of this document no longer being necessary for the crossing of certain frontiers. From these various circumstances the warrant deduced that there existed, in the case, a danger of flight (Fluchtgefahr), within the meaning of Section 175 (1) (2) of the Code of Criminal Procedure. Neumeister was arrested on the afternoon of 12 July 1962 near to his office.   He immediately requested the elder of his daughters, Maria Neumeister, to cancel by telegram the tickets which he had booked for the crossing of the Baltic.   He stated to the police officers who were sent to take him into custody that it had been his intention to visit the Public Prosecutor’s Office the following day with a view to seeking authorisation for his departure for Finland on Monday, 16 July. On 13 July 1962 Neumeister appeared for a few moments before the Investigating Judge who informed him that he was being placed in detention on remand (Section 176 (1) of the Code of Criminal Procedure). 13.   On 23 July 1962, the applicant lodged his first appeal against the order of arrest of 12 July 1962.   Emphasising that his firm, his home and his family were in Vienna, he stated that there were no grounds for believing in the reality of a danger of flight and that if he had wished to abscond he could easily have done so before. The Judges’ Chamber (Ratskammer) of the Regional Criminal Court of Vienna dismissed the appeal on 31 July 1962 for reasons similar to those set out in the order in dispute.   In particular it laid great weight on the statements of Rafael which, in its opinion, had definitely worsened Neumeister’s position. The Applicant challenged this decision on 4 August 1962.   He maintained that Section 175 (1) (2) of the Code of Criminal Procedure required a "danger of flight" and not merely a "possibility of flight", that the presence of such a danger must be determined in the light of concrete facts and that the possibility of a heavy sentence was not a sufficient ground to assume danger of flight.   It referred to a judgment of the Constitutional Court (Verfassungsgerichtshof) of 8 March 1961 (Official Collection of the Decisions of this Court, 1961, pages 80-82). The Court of Appeal (Oberlandesgericht) of Vienna dismissed the appeal (Beschwerde) on 10 September 1962.   While endorsing the reasoning of the Judges’ Chamber, it added that Neumeister knew perfectly well that the charges weighing upon him had become more serious after 12 May 1961, that he must expect a heavy sentence in view of the enormity of the loss caused, and that according to a police report of 12 July 1962 he had carried out preparations for a journey abroad and had not abandoned them although the competent Investigating Judge had expressly refused the necessary authorisation.   In these circumstances the Court was of the opinion that a danger of flight must be deemed to exist. 14.   Neumeister filed a second request for provisional release on 26 October 1962.   While once again endeavouring to prove the absence of a danger of flight, he offered for the first time, as a subsidiary request, a bank guarantee of 200,000 or, at the most, 250,000 schillings (Section 192 of the Code of Criminal Procedure). The Judges’ Chamber rejected the request on 27 December 1962. Recalling that Neumeister faced a punishment of from five to ten years’ severe imprisonment (Section 203 of the Criminal Code) and that he was answerable for a loss of about 6,750,000 schillings, it took the view that the deposit of security would not be sufficient to dispel the danger of flight and that it was therefore unnecessary to examine the amount of the security proposed. Neumeister challenged this decision on 15 January 1963.   In addition to the arguments expounded in his request of 23 July 1962 and in his appeal of 4 August 1962, he pointed out: - that the amount of the loss wrongfully attributed to him in his view, had decreased considerably, from more than forty million schillings (24 February 1961) to a little more than eleven and a half million (12 May 1961) and was later to fall to 6,748,510 schillings (decision of 27 December 1962); - that certain persons detained in connection with other more important cases had recovered their freedom against the deposit of security; - that he had never sought to abscond, for instance between his release (12 May 1961) and his second arrest (12 July 1962), and, more especially, by taking advantage of his stay in Finland; - that only a few hours had elapsed between his appearance before the Investigating Judge, on the morning of 12 July 1962 and his arrest; - that this brief interval of time had not left him any real possibility of annulling the preparations for his journey, preparations which in any case he did not wish to forgo without attempting one last approach to the Public Prosecution; - that he had already undergone more than nine months’ detention on remand (24 February 1961-12 May 1961 and 12 July 1962-15 January 1963), another factor which, in his opinion, argued against the danger of flight; - that all his professional and family interests were centred around Vienna where, moreover, his wife had just opened a ladies’ ready-made dress shop. The Court of Appeal of Vienna rejected the appeal on 19 February 1963. Referring to its decision of 10 September 1962, it observed that the situation had not changed in a way favourable to Neumeister since then.   It was true that the amount of loss attributed to him had diminished, but this sum did not include that for which he might be held responsible in a case concerning the sham export of machines (Kreisverkehr der Textilien der Firma Benistex).   Moreover, it had not decreased to such a point as to be of decisive influence on the sentence which Neumeister would have to anticipate in the event of conviction.   From this the Court concluded that the danger of flight remained so great that even the possible supplying of guarantees could not be considered (indiskutabel ist) and that such guarantees could in no way eliminate this danger. 15.   Four weeks earlier, more precisely on 21 January 1963, the Investigating Judge had proceeded to another confrontation between Rafael and Neumeister who had substantially confirmed their respective statements of 10 and 11 July 1962.   According to the Applicant the confrontation lasted for about a quarter of an hour.   A page and a half of minutes were taken on this occasion. 16.   On 12 July 1963, the same day as that on which he lodged his application with the European Commission of Human Rights, Neumeister filed a third request for provisional release to which he added a supplement on 16 July; he pledged himself to make the solemn undertaking (Gelöbnis) laid down by Section 191 of the Code of Criminal Procedure and once again offered to provide, if need be, a bank guarantee of 200,000 or 250,000 schillings.   While reiterating his earlier arguments, he observed: - that between his release (12 May 1961) and his second arrest (12 July 1962), he had always held himself at the disposition of the Investigating Judge, had presented himself of his own free will before the latter on five or six occasions to obtain information concerning the progress of the investigation and had informed him as far back as March 1962 of his plan to make a journey to Finland; - that the Austrian railways had authorised him to construct near the Vienna east railway station, a warehouse worth one and a half million schillings, a project which he had been unable to accomplish because of his imprisonment; - that since the imprisonment no new charge had been uncovered against him; - that Lothar Rafael, having made a number of confessions (Geständiger), was seeking to improve his own lot by casting his guilt onto others and that his statements were completely uncreditworthy; - that after more than one year of detention on remand, the assumption of there existing a danger of flight was no longer plausible. The Investigating Judge rejected the request of 23 July 1963.   He was of the opinion that the grounds stated in the decisions of 31 July 1962, 10 September 1962, 27 December 1962 and 19 February 1963 retained their relevance and that the documents in the file in substance corroborated Rafael’s accusations against Neumeister. The latter then lodged with the Judge’s Chamber of the Regional Criminal Court of Vienna, on 5 August 1963, an appeal in which he restated many of the arguments summarised above to which he added others, in particular the following: - considering the size and complexity of the case, the investigation and the subsequent proceedings would seem to be of considerable length with the consequence that the length of the detention on remand, already greater than fourteen months, was in danger of exceeding that of the possible sentence, if remedial measures were not speedily taken; - the Investigating Judge had failed to answer several of Neumeister’s arguments and to specify the documents which seemed to him to support Rafael’s statements, which were in any case most likely to be withdrawn sooner or later; - the same judge had been in error in minimising the importance of the reduction of the loss attributed to Neumeister, a reduction which might very well continue in the future; - he had not based his decision on facts, but merely on presumptions concerning the effects of Rafael’s assertions on Neumeister’s state of mind (Seelenzustand). Neumeister further emphasised: - that he was prepared to deposit with the court his identity papers and his passport; - that he had no means whatsoever of supporting his family abroad; - that in any case flight would be senseless for a man of his age, all the more so since, in the case of his being extradited, he ran the risk of not benefiting from the period of his detention on remand being calculated as part of his possible sentence (allusion to Section 55 (a) in fine of the Criminal Code). The Judges’ Chamber dismissed the appeal on 8 August 1963.   Referring to the decision which was being attacked and to those which had preceded it, in substance it observed: - that Rafael’s statements were confirmed by a number of factors (originals of letters, accountable receipts, statements of account, witnesses’ testimony, etc.); - that the confrontation between Rafael and Neumeister in July 1962 had considerably worsened the latter’s position and that the Investigating Judge was correct in attaching importance to the effects which it could not fail to have upon the morale of the Applicant; - that, in these circumstances, the possible supplying of guarantees could not be considered (indiskutabel ist) and could in no way eliminate the danger of flight. On 20 August 1963, Neumeister lodged an appeal against this decision with the Vienna Court of Appeal.   His complaints were substantially the same as those which he had formulated on 5 August 1963.   He also charged the Judges’ Chamber with not having specified the contents of the documents supposed to corroborate Rafael’s accusations, with having ignored the question of whether he, Neumeister, was aware of these documents, and with having overlooked the fact that more than six months had passed since the last decision of the Court of Appeal (19 February 1963).   He also pointed out that he could easily have absconded, had he so wished, in the interval between his confrontation with Rafael and his arrest. The Court of Appeal was not called upon to decide the question, however: Neumeister withdrew his appeal on 11 September 1963 without giving any reasons for so doing. 17.   On 16 September 1963, Neumeister’s elder daughter filed with the Ministry of Justice a petition which sought her father’s release; she offered security of one million schillings. The Vienna Economic Police addressed to the Regional Criminal Court, on 13 November 1963, a confidential report from which it appeared that Maria Neumeister had unsuccessfully sought to obtain part of that sum from a former client of the Iteka and Scherzinger firms. 18.   Some days earlier - on 6 November 1963, two days after the closing of the preliminary investigation (paragraphs 19 and 20 infra) - Dr. Michael Stern, attorney, had made, on Neumeister’s behalf, a fourth request for provisional release.   In it, he briefly repeated the arguments developed in the preceding requests, emphasised that the period during which the Applicant had been held on remand was already almost twenty months, and suggested a bank guarantee of one million schillings. In the course of the proceedings before the Commission, Neumeister stated that this last offer was made against his wishes as he was not, at that time, in a position to raise a guarantee for such a large sum. By a letter of 14 April 1964, Dr. Stern confirmed that in this matter he had acted on his own initiative. Before the Commission, the Government’s representatives observed that the offer was binding on Neumeister and that the competent courts had no reason to believe that it did not express Neumeister’s own wishes. The Investigating Judge rejected the request on 5 December 1963. Referring to the decisions of 31 July 1962, 10 September 1962, 27 December 1962, 19 February 1963 and 8 August 1963, he held that the Applicant had failed to bring forward any facts or arguments which could justify his release. Neumeister attacked this decision on 13 December 1963.   He once more denied that any danger of flight existed; in his view the Regional Criminal Court of Vienna and the Vienna Court of Appeal had never evaluated correctly the facts which were relevant to this point, had based themselves on vague presumptions rather than solid proof and had mistakenly attached decisive importance to the enormous loss allegedly caused to the State.   He complained in particular that the Regional Criminal Court had failed, in its decision of 5 December, to take into account the length of the detention on remand which he had already undergone.   In conclusion, the appeal repeated the offer of a bank guarantee of one million schillings. The Judges’ Chamber of the Regional Criminal Court of Vienna allowed the appeal on 8 January 1964.   It recognised that the Applicant’s arguments carried a certain weight: recalling that Neumeister faced a sentence of five to ten years’ severe imprisonment, it observed that it was uncertain as to whether he would benefit from the law providing for cases involving extenuating circumstances (außerordentliches Milderungsrecht, Section 265 (a) of the Code of Criminal Procedure) but that the length of detention on remand would, in all probability, be deducted from the sentence in the event of a conviction (Section 55 (a) of the Criminal Code) and that the inducement to flee was thereby considerably lessened (wesentlich verringert).   However it considered that a guarantee of one million schillings was not sufficient to eliminate the danger of flight.   On this point it emphasised that Section 192 of the Code of Criminal Procedure stipulates that the amount of bail depends not only on the circumstances of the detainee and on the financial situation of the person providing the security, but also on the consequences of the offence.   For these reasons, the Judges’ Chamber ordered Neumeister’s provisional release against security of two million schillings (either in cash or in the form of a bank guarantee) and the voluntary deposit (freiwillige Hinterlegung) of his passport with the Court. On 21 January 1964, Dr. Stern lodged, on behalf of Neumeister, an appeal designed to reduce the amount of security stipulated to one million schillings.   The substance of his argument was that under Section 192 of the Code of Criminal Procedure, the consequences of an offence should be taken into consideration only after due allowance had been made for the circumstances of the detainee and the financial situation of the guarantor.   From this he concluded that in no case should the courts demand a guarantee in excess of the means of the Applicant (Gesuchssteller), with the result that they might, if they so wished, prevent provisional release in a case where the loss was substantial. The decision in dispute was partially altered by that of 4 February 1964.   After deciding that the appeal concerned solely the amount of the security required, the Vienna Court of Appeal came to the same conclusion as the Judges’ Chamber, to wit that a sum of one million schillings was too small, regard being had to the loss entailed by the acts in respect of which Neumeister was accused.   It added that the Applicant most probably possessed far greater assets than the amount offered as bail, thanks to the profit he had made from these same acts.   It also observed that he had not specifically claimed that his means would be exhausted by his having to give bail of one million schillings.   The Court stated however that it did not have the necessary documents or information available to enable it to consider the amount of bail fixed by the Judges’ Chamber.   It therefore remitted the case to the Judges’ Chamber emphasising that it was incumbent upon the latter, in the light of a detailed examination of Neumeister’s circumstances and of the financial situation of the guarantors he could name to fix the bail between the limits of one and two million schillings. In a report dated 16 March 1964, drawn up at the request of the Judges’ Chamber, the Economic Police of Vienna expressed the opinion that Neumeister was quite unable to obtain two million schillings. This opinion was based on a number of documents from which it appeared that the Scherzinger firm was hardly in a healthy financial position and on the fact that Maria Neumeister stated that she could procure a guarantee of five hundred thousand schillings. The Judges’ Chamber of the Regional Criminal Court of Vienna reached its decision on 31 March 1964, that is, two weeks after the preferment of the indictment (paragraphs 19 and 21 infra).   Besides mentioning the report of the Economic Police, it referred to a letter written by Neumeister dated 25 February 1964, according to which a person who wished to remain anonymous had agreed to provide security of one million two hundred and fifty thousand schillings.   After adding together this sum and the five hundred thousand schillings offered by Maria Neumeister, the Judges’ Chamber reduced the amount of security required of the Applicant to one million seven hundred and fifty thousand schillings. In an appeal dated 20 April 1964, Neumeister requested that the sum should be reduced to one million two hundred and fifty thousand schillings; he maintained that the offer made by his daughter was included within that of the guarantor who did not wish to disclose his identity. The Vienna Court of Appeal dismissed the appeal on 20 May 1964.   It was of the opinion that the Judges’ Chamber had complied with the decision of 4 February and that the consequences of the offence were of fundamental importance in the application of Section 192 of the Code of Criminal Procedure. 19.   Meanwhile Judge Leonhard had, on 4 November 1963, announced the conclusion of the preliminary investigation and had sent the file to the Public Prosecution (Sections 111-112 of the Code of Criminal Procedure).   The file consisted of twenty-one volumes each of about five hundred pages, as well as a considerable number of other documents.   On 17 March 1964, the Public Prosecution of Vienna had, for its part, completed the indictment (Anklageschrift) of which Neumeister had been notified on 26 March (Sections 207 and 208 of the Code of Criminal Procedure). 20.   In the execution of his task, the Investigating Judge had been aided by the Economic Police of Vienna, by the taxation department (Inspector Besau), by the Austrian railways and by the postal service administration; nevertheless, he had still encountered considerable difficulties. Four of the principal accused, named Lothar Rafael, Herbert Huber, Franz Schmuckerschlag and Walter Vollmann, had fled abroad, the first three at the outset of the enquiries and the last-named after being provisionally released on parole.   After rather long proceedings, the Austrian authorities had obtained Rafael’s extradition (21 December 1961) from the Federal Republic of Germany, and Huber’s (27 September 1962) from Switzerland.   The Federal Republic of Germany had, however, refused to grant the extradition of Schmuckerschlag as he possessed German, as well as Austrian, nationality.   Vollmann has not, up to the present time, been traced. To this were added a number of difficulties inherent in the nature, the size and the complexity of the acts complained of.   At its outset, the investigation concerned twenty-two persons and twenty-two counts. The prosecution was required to prove, among other things, that the documents concerning the purchase of goods had been falsified, that the value of the exports had been overstated with fraudulent intent, that the recipient firms abroad were either non-existent or ignorant of the whole affair and that the exporters had deposited the proceeds of the sales in Switzerland or Liechtenstein.   To achieve this aim it had been necessary to reconstruct many business operations which had taken place over a period of several years, to check the routes followed by one hundred and fifty or one hundred and sixty railway trucks, to study a large number of Revenue Office files, to hear dozens of witnesses, some of whom had to be examined again after Rafael’s extradition, etc.   Many of the witnesses lived abroad, for example in the Netherlands, Italy, the United States, Canada, Latin America, Africa and the Near East.   The Republic of Austria had therefore been obliged to have recourse to the services of Interpol or to invoke the accords providing for mutual legal assistance which she had concluded with States such as the Netherlands, the Federal Republic of Germany, Italy, Switzerland and Liechtenstein.   The enquiries conducted in the Netherlands, the Federal Republic of Germany and in Switzerland had in part taken place in the presence of Austrian officials and especially, as regards those in Switzerland, in the presence of Judge Leonhard, the Investigating Judge.   Delays of from six to sixteen months had occurred between the sending of requests for legal assistance and the receipt of the results of the investigations which had taken place in the Netherlands, the Federal Republic of Germany, Italy and Switzerland.   At the time of the closing of the investigation the request addressed to Switzerland remained pending on one point, with regard to which no positive result was, in the end, obtained, as the Swiss authorities were of the view (September 1964) that the professional duty of secrecy imposed on the Zurich bankers in question conflicted with the disclosure of the information sought.   Liechtenstein’s reply was received in Austria only in June 1964. Firms under Soviet administration were also involved, especially at the beginning of the investigation: however, it was impossible to obtain documents from the Soviet Armed Forces Bank through which settlements had been effected. The course of the investigation seems to have been slowed down by the refusal of one of the accused - Herbert Huber - to make any statement whatsoever before the Investigating Judge. On the other hand, the proceedings relating to certain facts or accused had been severed by reason of their secondary importance (Section 57 (1) of the Code of Criminal Procedure); these seem to have been later abandoned (Section 34 (2) of the same code).   At the time of the closure of the preliminary investigation, the number of accused in the case did not exceed ten. After 21 January 1963, the date of his last confrontation with Rafael, Neumeister was not heard again by the Investigating Judge who, during the same period, interrogated Rafael twenty-eight times (272 pages of minutes) and five other accused seventeen times in all (119 pages of minutes).   According to the minutes of the confrontation of 21 January 1963, another confrontation was planned.   It did not take place, however; in the Applicant’s opinion, it was Lothar Rafael’s refusal to participate which prevented this intention being realised. 21.   The indictment of 17 March 1964 was 219 pages long and concerned ten persons, in the following order: Lothar Rafael, Herbert Huber, Franz Scherzer, Fritz Neumeister, Iwan Ackermann, Leopold Brunner, Walter Vollmann, Hermann Fuchshuber, Helmut Dachs and Rudolf Grömmer; it was in no way concerned with the "Kreisverkehr der Textilien der Firma Benistex" case which was the object of separate proceedings (paragraph 22 infra). For his part, Neumeister was accused of aggravated fraud (Sections 197, 200, 201 (a) and (d) and 203 of the Criminal Code) in ten groups of transactions relating to very different items: toilet soap, tools (cutters and welding bars), ladies’ clothing (nylon stockings, skirts, blouses, etc.), gym shoes, leather and velvet goods, indoor lamps and running gear.   The amount of loss for which he was called upon to answer exceeded 5,200,000 schillings.   The loss attributed to the Applicant was the fourth highest of the accused, being less than that alleged to be caused by Rafael (more than 35,100,000 schillings), Vollmann (about 31,900,000 schillings), and Huber (about 31,800,000 schillings), but more than that caused by Scherzer (more than 1,400,000 schillings), Brunner (more than 1,250,000 schillings), Dachs (more than 1,100,000 schillings), Ackermann and Grommer (about 200,000 schillings).   Some of the dealings did not concern him at all.   This was the case, mainly with a large operation involving the export of textiles in which only Rafael, Huber and Vollmann were implicated (more than 25,700,000 schillings, pages 101-170 of the indictment). The Public Prosecution requested, inter alia, the opening of the trial before the Regional Criminal Court of Vienna, the calling of thirty-five witnesses and the reading of the affidavits of fifty-seven more. 22.   On 3 June 1964, the Vienna Public Prosecution informed the Judges’ Chamber of the Regional Criminal Court that it was provisionally discontinuing the proceedings against Neumeister in the "Kreisverkehr der Textilien der Firma Benistex" case, although reserving the right to resume them at a later date (Section 34 (2), paragraph (1), of the Code of Criminal Procedure).   At the time of the laying of the indictment, the Public Prosecution had prevailed upon the Court to sever these proceedings which had subsequently been dealt with separately (26 d VR 2407/64). On the same day, the Judges’ Chamber, stating that the total loss imputed to Neumeister had been reduced by more than four million schillings, decided to reduce to one million schillings - either in cash or in the form of a banker’s guarantee - the amount of security required for the release of the Applicant. On 13 August 1964, Neumeister informed the Judges’ Chamber that his daughter, Maria Neumeister and another named person were prepared to stand surety for him (Bürgen), the former putting up 850,000 schillings and the latter 150,000.   The persons concerned confirmed this on the following day.   After carrying out a check on their solvency (Tauglichkeit), the Judges’ Chamber accepted their offer on 16 September 1964.   Some hours later the Applicant made the solemn undertaking provided for by Section 191 of the Code of Criminal Procedure, deposited his passport with the Court in conformity with the decision of 8 January 1964, which, on this point, was still in force, and was set at liberty. 23.   The various decisions concerning Neumeister’s detention on remand were all reached in accordance with Sections 113 (2) (first instance) and 114 (2) (appeal) of the Code of Criminal Procedure, at the end of a hearing not open to the public in the course of which the Public Prosecution was heard in the absence of the Applicant and his legal representative (in nichtöffentlicher Sitzung nach Anhörung der Staatsanwaltschaft bzw. der Oberstaatsanwaltschaft). 24.   On 9 October 1964, the date for the opening of the trial (Hauptverhandlung) was fixed for 9 November. On 18 June 1965, after one hundred and two days of the hearing, the Regional Criminal Court of Vienna, constituted as a mixed lay and legal court (Schöffengericht), postponed the completion of the trial indefinitely so that the investigation might be completed.   Having received a number of requests from the Public Prosecution and from some of the accused including Neumeister, it gave effect to several of them and ex officio called for certain additional measures of investigation to be taken.   Herbert Huber’s attitude seems to have played a major part in making this supplementary investigation necessary: whereas during the preliminary investigation he had maintained a strict silence, he explained his conduct in detail before the judges; according to Neumeister, Huber’s statements were favourable to him while highly incriminating as regards Rafael.   The Court nevertheless indicated that, in its opinion, some of the new enquiries and hearings of witnesses ordered by it should have been conducted earlier during the preliminary investigation. 25.   In February and July 1965, Neumeister made the journey to Strasbourg with the permission of the Regional Court, in connection with the application filed by him before the European Commission of Human Rights.   His passport is said to have been restored to him some days