DISSENTING OPINION OF JUDGE HOLMBÄCK

As the Court has stated in the Judgme nt, the period to be taken into consideration for verifying whether or not the reasonable time referred to in Article 6 (1) (art. 6-1) has been observed in the Neumeister case began on 23 February 1961.  Then, as the hearing in the case was opened on 9 November 1964 the period lasted for more than three years and eight months.  In my opinion that period was too long and therefore I agree with the Commission (Report of 27 May 1966, six votes with the President ’ s casting vote to six) that Article 6 (1) (art. 6-1) was violated in the case.  On 18 June 1965 the trial was adjourned and the case returned to the Investigating Judge.  The trial was resumed before the court on 4 December 1967 .  The material brought before the Court is, in my view, not sufficient for an opinion to be formed as to whether this further delay also implies a violation of Article 6 (1) (art. 6-1) of the Convention.

INDIVIDUAL DISSENTING OPINION OF JUDGE ZEKIA

I was unable to share the opinion of my learned colleagues in their coming to the conclusion that in the Neumeister case there was no contravention of Article 6 (1) (art. 6-1) of the European Convention on Human Rights on the part of the Austrian authorities.

I propose to deal shortly with my reas ons of dissent.  A statement of facts as well as of arguments and submissions, covering those also relevant to Article 6 (1) (art. 6-1) of the Convention, having been embodied in the main Judgment of the Court already delivered I am spared from going into them all over again.

Neumeister was charged on 23 February 1961 with aggravated fraud under relevant articles of the Austrian Penal Code.  The fraud involved several millions of schillings.  The Applicant was kept in detention for two periods totalling two years four months and twenty-one days. The first period began on 24 February 1961 , that is the day after he was charged, and ended on 12 May 1961 .  The second period started on 12 July 1962 and came to an end on 6 September 1964 . On the latter date, he was released on bail.  Proceedings before the trial court substantially for the same offences with which he was originally charged started on 9 November 1964 and after several months of sitting the trial was adjourned sine die for further investigations.  It was reopened on 4 December 1967 and to this day the hearing of this case has not been completed.

Over seven years have elapsed between the time Neumeister was originally charged and he did not yet have a judgment of conviction or acquittal.

Although the investigation was closed on 4 November 1963 the trial did not begin until 9 November 1964 and for a period of fifteen months prior to 1 November 1963 there appears to be a marked slackness on the part of the investigating authorities.

Article 6 (1) (art. 6-1) reads " In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".  Paragraph 2 of the same Article (art. 6-2) reads "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

The words "within a reasonable time" occurring in the first paragraph of Article 6 (art. 6-1) and the words "shall be presumed innocent" appearing in the last-cited paragraph surely are not devoid of practical significance.

This was undoubtedly an exceptionally complicated case necessitating protracted investigations and long proceedings for the procurement of evidence from abroad.  A series of offences are alleged to have been committed by the Applicant and a number of persons along with him are implicated.

Notwithstanding the difficulties enc ountered in the preparation and presentation of the case I am unable to persuade myself - even after making certain allowances for the delays caused by the necessity for these long investigations and the difficulties of procuring evidence - that such a long interval and delay between the date Neumeister was originally charged and the date of the conclusion of his trial, the date of which is not yet known, could be considered as compatible with the letter and spirit of Article 6 (1) (art. 6-1) of the Convention just cited.

In a democratic society, to keep a man in suspense and in mental agony for seven years and over, in a state of uncertainty and not knowing what would befall him, with the consequential hardships to him and to his family in business and society, in my view, constitutes a clear violation of the right guaranteed to him under Article 6 (1) (art. 6-1) referred to.  Undoubtedly it is desirable, and the administration of justice also demands it that a court should endeavour to get the truth and the whole truth specially in a criminal case, but with extremely belated proceedings in this direction, it is highly questionable whether they defeat or serve the ends of justice. It would be better in such cases to rule in favour of the individual if there exists a doubt in the minds of the Court.

I entertain therefore no doubt that in the circumstances of this case, the Austrian authorities violated Article 6 (1) (art. 6-1) of the Convention.