EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 30546/96

Hans-Peter Löffler

against

Austria

REPORT OF THE COMMISSION

(adopted on 9 September 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-24) 3

III. OPINION OF THE COMMISSION

(paras. 25-36) 4

A. Complaint declared admissible

(para. 25) 4

B. Point at issue

(para. 26) 4

C. As regards Article 6 para. 1 of the Convention

(paras. 27-35) 4

CONCLUSION

(para. 36) 5

DISSENTING OPINION OF MR K. HERNDL 6

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 8

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is an Austrian citizen, born in 1944 and residing in Linz .  He was represented before the Commission by Mr. R. Gabl , a lawyer practising in Linz .

3. The application is directed against Austria.  The respondent Government were represented by their Agent, Ambassador F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

4. The case concerns the length of criminal proceedings against the applicant.  The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 12 January 1996 and registered on 22 March 1996.

6. On 4 September 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 18 November 1996.  The applicant replied on 9 January 1997.

8. On 10 September 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 24 September 1997 and they were invited to submit such further information or observations on the merits as they wished.  No such observations were submitted.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 9 September 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

16. On 11 April 1986 preliminary investigations on the suspicion of murder were instituted against the applicant.  On 31 March 1987 a Court of Assizes ( Geschworenengericht ) at the Linz Regional Court ( Landesgericht ) convicted the applicant of murder and sentenced him to eighteen years' imprisonment. On 15 September 1987 the Supreme Court ( Oberster Gerichtshof ) dismissed the applicant's plea of nullity and appeal against the sentence.

17. On 6 September 1990 the applicant requested the reopening of the criminal proceedings against him.  On 11 December 1991 the Linz Regional Court dismissed the applicant's request.  On 15 June 1992 the Linz Court of Appeal ( Oberlandesgericht ) granted the applicant's appeal and reopened the criminal proceedings against him.  At the same time the applicant was released.

18. On 23 August 1993 the Linz Public Prosecutor's Office filed a bill of indictment charging the applicant with murder.  On 7 October 1993 the Linz Court of Appeal granted the applicant's objections against the bill of indictment.

19. On 30 May 1994 the Public Prosecutor's Office filed a new bill of indictment against the applicant.  On 9 September 1994 the Court of Appeal dismissed the applicant's objections against the bill of indictment.

20. On 6 February 1995 the Supreme Court dismissed the request by the Linz Regional Court to transfer jurisdiction in the case to a court in Vienna.

21. On 3 April 1995 the applicant filed a request under Section 91 of the Courts Organisation Act ( Gerichtsorganisationsgesetz ) with the Linz Court of Appeal.  He complained about the inactivity of the Regional Court and requested the Court of Appeal to order the Regional Court to fix a date for the trial.  On 24 May 1995 the Court of Appeal refused the above request.  The Court of Appeal found that the Regional Court had to wait for further expert opinions concerning a DNA test of hair and skin parts which had been found on the victim and his clothes.

22. On  30 October 1995 the DNA test results were transmitted to the court.

23. On 12 February 1996 the Presiding Judge of the Court of Assizes at the Regional Court fixed the date of the applicant's trial for 19 August 1996.

24. The applicant's trial commenced on 19 August 1996 and finished on 29 August 1996.  On 29 August 1996 the Court of Assizes acquitted the applicant.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

25. The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.

B. Point at issue

26. The only point at issue is whether there has been a violation of Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

27. Article 6 para. 1 of the Convention, insofar as relevant, reads as follows:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ..."

28. The Commission observes that the applicant was convicted in 1987 and that this conviction became final.  On 15 June 1992, however, the criminal proceedings against him were re-opened and on 29 August 1996 he was acquitted.  The Commission finds that after the re-opening of the proceedings the applicant was again someone charged with a criminal offence (No. 7761/77, Dec. 8.5.87, D.R. 14, p. 173; No. 23806/94, Dec. 18.10.95, unpublished).  Article 6 of the Convention therefore applies to the proceedings at issue.

29. As regards the calculation of the time to be taken into consideration the Commission finds that the following periods have to be taken into account:  the period of the first set of proceedings, that is from 11 April 1986 until 15 September 1987, and, as a second phase, the period starting with the applicant's application for re-opening, 6 September 1990, and ending with his acquittal on 29 August 1996 (see Eur. Court HR, Poiss v. Austria judgment of 23 April 1987, Series A no. 117-C, p. 103, paras. 51-53; No. 29989/96, Dec. 27.2.97, unpublished).  The overall period therefore is seven years and five months.

30. The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to its complexity, the conduct of the parties and the conduct of the authorities dealing with the case (see e.g. Eur. Court HR, Vernilllo v. Italy judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

31. The first set of proceedings took seventeen months and does not give rise to any objections.  The proceedings concerning the request for re-opening took one year and ten months in two instances.  Their length also appears to be reasonable.  The length of the re-opened proceedings which lasted for some four years requires, however, further consideration.

32. The applicant submits that the reopened proceedings were conducted in a slow manner.  No extensive investigations had been necessary in order to trace the former incriminating witness and after the bill of indictment had become final on 9 September 1994, it took some further two years before the trial started.  This could not be explained by the necessity to obtain further expert opinions.  On the one hand the expert report could have been requested much earlier.  On the other hand the expert had completed his report in August 1995, while the trial only started in August 1996.

33. This is contested by the Government.  They submit that the criminal proceedings against the applicant were rather complex.  After the re-opening had been granted it took some time until the former main incriminating witness could be traced, as she had meanwhile moved to the United States.  Furthermore, in order to clarify the case complicated reports by scientific experts had to be obtained.  Having regard to these elements the proceedings were conducted within a reasonable time.

34. The Commission finds that the proceedings for the reasons given by the Government may have been somewhat complex.  These elements are, however, not sufficient to explain their length.  In this respect the Commission observes that the proceedings were re-opened on 15 June 1992 and already by March 1993 the witness in question, having been traced in the United States, had given evidence in Vienna before the Investigating Judge.  As regards the expert opinions to which the Government refer, it cannot be seen why this evidence could not have been obtained at an earlier stage rather than waiting until after the bill of indictment had become final.  In any event, the expert's report was received by the Court in October 1995, while the trial only started in August 1996.  The Commission therefore finds that the Government has not given sufficient explanations for these delays.

35. In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

36. The Commission concludes, by 16 votes to 1, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

   to the First Chamber of the First Chamber

(Or. English)

DISSENTING OPINION OF MR K. HERNDL

The reasons for which I do not subscribe to the majority's view that in the present case the length of criminal proceedings was excessive and failed to meet the "reasonable time" requirement (para. 35 of the Report) are easy to explain. They are as follows:

I. The period to be considered

The majority take as their point of departure an "overall period" of seven years and five months while in my opinion the period to be taken into account is just four years. The majority arrive at their total figure by simply adding a "first set of proceedings" (which in 1986/87 resulted in the applicant's final conviction on a charge of murder) to a "second phase" (starting with the applicant's request for reopening and ending with the final acquittal) (para. 29).

In my view the "first set of proceedings" falls clearly outside the framework of the present application. The proceedings conducted in 1986/87 do not raise any problem under the Convention. They are not covered by the present application which concerns exclusively "the length of the reopened criminal proceedings against [the applicant]" (see the Commission's admissibility decision of 10 September 1997). If the "first set of proceedings" has to be excluded altogether from consideration, the following question arises: When did the "second phase" actually start ?

The majority assume that this phase started with the applicant's request for reopening, i.e. 6 September 1990 (para. 29). The reopening, however, was granted by the competent Court only on 15 June 1992. That date, and no date earlier, marks therefore the starting point of the period to be taken into consideration. This is even explicitly recognised by the majority: "On 15 June 1992 the criminal proceedings... were reopened...; after the reopening of the proceedings the applicant was again someone charged with a criminal offence" (para. 28). The conclusion is obvious: As far as the determination of a criminal charge is concerned, Article 6 can only be said to apply from that point in time onwards. The duration of the proceedings starting with the request for reopening and ending with the decision to actually reopen, falls outside the scope of application of Article 6. No analogy would seem to exist between the present case and the case of Poiss v. Austria to which the majority refer (para. 29). Poiss concerned exclusively civil rights and obligations, which were decided upon in several stages. Here, we are dealing with a criminal case to which the Commission's consistently held view applies that Article 6 "does not apply to proceedings for the reopening of criminal proceedings, given that someone who applies for his case to be reopened and whose sentence has become final is not 'charged with a criminal offence' within the meaning of the said Article" (Nos. 19255/92 and 21655/93 joined, Dec. 16.5.95, D.R. 81, p. 5 at p. 13). The only period to be taken into account when assessing the "reasonable time" in the present case is accordingly the period from 15 June 1992 up to the applicant's final acquittal on 29 August 1996.

2. The complexity of the case

On first glance a period of some four years for criminal proceedings in one instance may appear as excessive. The present case, however, contained a series of elements which apparently made it difficult for the authorities to speed up the matter. In particular, the main witness whose testimony was essential and who had moved to the United States, had to be traced and contacted there, served the summons and later be brought to Austria to give her evidence. Further, it became necessary to obtain expert advice, based on a DNA analysis, on traces of fibres . The expert report was not ready before October 1995. The trial took place in August 1996, i.e. ten months later, following a change in the person of the Presiding Judge. Moreover, as the applicant had challenged the original bill of indictment - the challenge being upheld by the Appeals Court - a new bill of indictment had to be prepared in time. Elements such as these underline the inherent complexity of the case. The majority themselves concede that "the proceedings ... may have been somewhat complex" (para. 34), but consider that these elements were not sufficient to explain the overall length. Taken together, however, these elements would in my eyes tend to show that the case which received increased publicity, was indeed complex enough to justify a thorough preparation taking quite some time. One should also not lose out of sight the fact that throughout the incriminated period the applicant was at liberty.