EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25965/94

Helmut Radolf

against

Austria

REPORT OF THE COMMISSION

(adopted on 14 January 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-13) 2

III. OPINION OF THE COMMISSION

(paras. 14-27)              3

A. Complaint declared admissible

(para. 14) 3

B. Point at issue

(para. 15) 3

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

(paras. 16-26)              3

CONCLUSION

(para. 27) 4

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              5

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE                                                             ADMISSIBILITY OF THE APPLICATION                                        8

I. INTRODUCTION

1. The present Report concerns Application No. 25964/94, introduced on 18 October 1994 against Austria and registered on 16 December 1994.

The applicant is an Austrian national born in 1936 and resident at Sulz im Wienerwald .

The applicant is represented before the Commission by Mr K. Arlamovsky and Mr M. Brunner , lawyers practising in Vienna.

The respondent Government are represented by Mr F. Cede, Ambassador, Agent.

2. On 29 November 1995 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 the admissibility and merits of the applicant's complaint about the length of the criminal proceedings against the applicant (Article 6 para. 1 of the Convention).  It declared the remainder of the application inadmissible.

Following an exchange of written observations, the complaint relating to the length of proceedings was declared admissible on 10 April 1997. The decision on admissibility is appended to this Report.

3. Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 14 January 1998 in accordance with Article 31 para. 1 of the Convention, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM B. MARXER

B. CONFORTI

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

4. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Austria.

5. The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. In his application, in which he relies on Article 6 para. 1 of the Convention, the applicant complains of the length of the criminal proceedings against him concerning charges of tax evasion.

7. On 5 November 1980 the Tax Office ( Finanzamt ) for the 12th, 13th, 14th and 23rd District of Vienna, laid information with the Vienna Public Prosecutor's Office ( Staatsanwaltschaft ), charging the applicant with tax evasion.

8. On 7 November 1980 the Vienna Regional Court ( Landesgericht ) instituted preliminary investigations against the applicant on the suspicion of tax evasion, and also issued a search warrant and an arrest warrant.  The applicant's premises were searched, and he was arrested on 20 November 1980.  During his detention he was questioned on the charges against him.  He was released on 28 November 1980.

9. In December 1982 the Regional Court adjourned the investigation proceedings in order to await the outcome of tax proceedings against the applicant which were conducted by the Mödling Tax Office.  In March 1983 the Mödling Tax Office filed a preliminary report with the Vienna Regional Court regarding the results of its investigations.  It noted that in order to prepare the final report, it had to await a report of the Vienna Tax Office, however, appeal proceedings against the various tax assessments were still pending.  The Court inquired about the state of the report in June 1983, November 1984 and January 1986.  In January 1990 the Mödling Tax Office, upon a further query, informed the Regional Court that no final ( rechtskräftig ) decisions had been taken.  Inquiries in 1991 were to no avail.

10. In January 1992 the Vienna Public Prosecutor's Office requested that the tax report concerning the applicant be amended.  This amendment was received by the Regional Court in March 1992, and the report prepared by the Vienna tax authorities in May 1992.  The applicant was questioned on 8 July 1992.

11. On 7 October 1992 the Vienna Public Prosecutor's Office drew up the bill of indictment against the applicant on charges of tax evasion committed between 1978 and 1979.  The applicant's objection ( Einspruch ) against the bill of indictment remained unsuccessful.

12. On 27 April 1993 the Regional Court directed that the trial should be held on 5 August 1993.  Upon the applicant's request, the hearing was adjourned and the trial scheduled for 4 November 1993.  Upon his further request, it was postponed until 25 November 1993.  On 25 November 1993 the Regional Court postponed the trial sine die in order to take further evidence, as requested by the defence .

13. On 28 April 1994 the Vienna Regional Court, following a further hearing, acquitted the applicant.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

B. Point at issue

15. The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1  (Art. 6-1) of the Convention

16. The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows :

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

17. As regards the time to be taken into consideration, the Commission notes that the proceedings started on 7 November 1980 when preliminary investigations were instituted against the applicant, and both a search and an arrest warrant issued.  The applicant was detained on remand between 20 and 28 November 1980.  The proceedings terminated on 28 April 1994 when the applicant was acquitted by the Vienna Regional Court.  The proceedings thus lasted more than thirteen years.

18. The Commission recalls that the reasonableness of proceedings must be assessed with reference to the following criteria: the complexity of the case, the conduct of the applicant and the conduct of the competent authorities, and in the light of the circumstances of the case, which in this instance call for an overall assessment  (cf. Eur. Court HR, Venditelli v. Italy judgment of 18 July 1994, Series A no. 293-A, p. 10, para. 22).

19. According to the applicant, the case was not particularly complex.  Moreover, the Republic of Austria is not only responsible for the conduct of the Vienna Regional Court, but also for delays caused by the tax authorities.

The Government maintain that the length of the proceedings was due to the complexity of the case.  There were no undue delays and no periods of inactivity on the part of the Vienna Regional Court.

20. The Commission notes that the charges against the applicant partly related to charges of tax evasion against an accomplice.  However, in the Commission's view, the Government's explanations as to the complexity of the case cannot justify the overall length of the proceedings.

21. The applicant, taking into account his requests to postpone the trial in 1993, did not contribute in a tangible manner to the length of the proceedings.

22. The Commission finds that the proceedings were mainly delayed in the course of the preliminary investigations which were pending before the Vienna Regional Court between November 1980 and July 1992.  It is true that during this period the Vienna Regional Court awaited the reports of the tax authorities on the final outcome of the tax assessment proceedings, and did not fail to inquire about the state of these proceedings in more or less yearly intervals. However, the Government's argument that there were, accordingly, no periods of inactivity imputable to the Regional Court is not convincing, given the responsibility of the Member States for all their institutions.

23. The Commission considers that the respondent Government have not explained the course of the tax assessment proceedings nor given reasons why these proceedings lasted for so long.

24. The Commission cannot accept that criminal proceedings should be suspended for years in order to await the outcome of lengthy administrative proceedings.  In this respect, the Commission recalls that Article 6 para. 1 (Art. 6-1) imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements (cf. Eur. Court HR, Schouten and Meldrum v. the Netherlands judgment of 9 December 1994, Series A no. 304, p. 26, para. 67).

25. Furthermore, the Commission considers that, having regard to the length of the proceedings at the time of the bill of indictment, the Austrian judicial authorities failed duly to expedite the trial against the applicant.

26. 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

27. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

         to the First Chamber of the First Chamber