EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25062/94

Gerd Honsik

against

Austria

REPORT OF THE COMMISSION

(adopted on 28 October 1997)

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. 16-31) 3

III. OPINION OF THE COMMISSION

(paras. 32-44) 5

A. Complaint declared admissible

(para. 32) 5

B. Point at issue

(para. 33) 5

C. As regards Article 6 of the Convention

(paras. 34-43) 5

CONCLUSION

(para. 44) 7

CONCURRING OPINION OF Mr B. CONFORTI 8

DISSENTING OPINION OF Mr K. HERNDL

JOINED BY MM A. WEITZEL, L. LOUCAIDES,

I. BÉKÉS, A. PERENI?, Mrs M. HION 9

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION 12

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE                  

ADMISSIBILITY OF THE APPLICATION 22

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 1941 and residing in

Königstetten.  He was represented before the Commission by Mr H. Schaller, a

lawyer practising in Traiskirchen (Austria).

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 August 1994 and registered on 1

September 1994.

6. On 18 October 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

relating to the length of the proceedings.  It declared the remainder of the

application inadmissible.

7. The Government's written observations were submitted on 17 January 1996.

The applicant replied on 15 April 1996.

8. On 27 February 1997 the Commission declared admissible the remainder of

the application.

9. The text of the Commission's decision on admissibility was sent to the

parties on 12 March 1997 and they were invited to submit such further

information or observations on the merits as they wished.  No 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:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

A. WEITZEL

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENI?

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 28 October 1997 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 decisions on the admissibility of the application are

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 16 December 1986 the Investigating Judge of the Vienna Regional Court

(Landesgericht) instituted preliminary investigations (Voruntersuchung) against

the applicant on the suspicion that articles written, published and distributed

by the applicant in his periodical "Halt" constituted National Socialist

activities within the meaning of the National Socialist Prohibition Act

(Verbotsgesetz). The investigations related to articles which denied the

existence of gas chambers in concentration camps under the National Socialist

regime and mass extermination therein.  The Investigating Judge also appointed a

medical expert, J.M., to prepare a report on the effects of toxic gas and its

use for killing people.

17. On 28 January 1987 the Investigating Judge appointed an expert on

contemporary history, G.J., to prepare a report on the existence of gas chambers

in concentration camps under the National Socialist regime and their use for

mass extermination.

18. On 4 September 1987 the Investigating Judge instructed the expert Prof.

G.J. to confine his report to the Auschwitz concentration camp.

19. Subsequently the Investigating Judge urged on several occasions the expert

to submit his report to the court. In February 1988 the expert G.J. informed the

Investigating Judge that he could not complete his report before autumn 1988.

In January 1989 he postponed this date to summer 1989 and in November 1989 he

informed the court that he could no longer state when the report would be ready.

20. On 7 November 1989 the Investigating Judge asked the medical expert J.M.

when his report would be ready.  On 10 November 1989 the expert replied that he

had thought that his report would no longer be required.  In any event, he could

not accept the appointment because of his work-load.

21. On 11 December 1989 G.J. informed the Investigating Judge that he hoped to

complete the report before the end of 1989.  No report was received by the court

at that date.

22. On 12 June 1990 the Vienna Public Prosecutor's Office (Staatsanwaltschaft)

preferred a bill of indictment against the applicant.

23. On 19 September 1990 the Vienna Court of Appeal (Oberlandesgericht)

dismissed the applicant's objection (Einspruch) against the bill of indictment.

24. In December 1990 the Presiding Judge of the Vienna Court of Assizes

(Geschwornengericht) at the Vienna Regional Court (Landesgericht), before which

the trial of the applicant was to take place, urged the expert G.J. to submit

his report.

25. On 10 January 1991 the expert G.J. submitted an interim report explaining

what research he had carried out meanwhile.

26. On 31 March 1992 Mr Schaller was appointed ex officio counsel for the

applicant.

27. On 22 April 1992 the defence submitted an extensive request for the taking

of evidence relating to the existence of gas chambers in concentration camps.

28. On 27 April 1992 the trial of the applicant commenced.  Further hearings

were held on 28, 29 and 30 April and 4 and 5 May 1992. On 29 and 30 April 1992

the expert Prof G.J. presented his report orally.  He concluded that in the

Auschwitz-Birkenau concentration camp at least several hundred thousand persons

were killed, a considerable part of them by use of toxic gas.

29. On 5 May 1992 the Court of Assizes convicted the applicant.  Having regard

to previous convictions it sentenced the applicant to an additional term of

imprisonment (Zusatzstrafe) of one year, six months and ten days.

30. On 12 October 1992 the applicant lodged a plea of nullity and an appeal

against the sentence.  On 5 January 1993 the Procurator General

(Generalprokurator) submitted his observations on the applicant's appeal and

plea of nullity.  On 28 May, 17 November, 22 November 1993, 8 February and 11

February 1994 the defence replied to the Procurator General's observations.

31. On 16 February 1994 the Supreme Court (Oberster Gerichtshof) dismissed the

applicant's plea of nullity.  It found that the Court of Assizes had acted

correctly when it refused to take the evidence proposed by the applicant.  It

referred in this respect to its previous case-law according to which the

existence of gas chambers in concentration camps and the systematic mass

exterminations which had occurred there were facts of common knowledge in regard

to which evidence need not be taken.  Furthermore it had constantly held that

the denial of these historic facts and the discrediting of reports thereof as

false propaganda constituted in itself an offence under the National Socialism

Prohibition Act.  As regards the applicant's appeal against sentence, the

Supreme Court noted that the applicant was of unknown abode.  Once the applicant

had been found the case would be remitted to the Court of Appeal to decide on

the appeal against the sentence.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

32. The Commission has declared admissible the applicant's complaint that his

case was not heard within a reasonable time.

B. Point at issue

33. The only point at issue is whether there has been a violation of Article 6

para. 1 (Art. 6-1) of the Convention.

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

34. Article 6 para. 1 (Art. 6-1) of the Convention, as far as material to the

case, read as follows:

"1. In the determination of ... any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time by an independent

and impartial tribunal established by law ...."

35. The Commission finds that the period to be taken into consideration

started on 16 December 1986, when preliminary investigations were opened against

the applicant, and ended on 16 February 1994, when the Supreme Court dismissed

the applicant's plea of nullity.  The proceedings thus lasted for seven years

and two months.  The Commission notes that the Austrian courts have not yet

decided on the applicant's appeal against the sentence because, after the

Supreme Court's decision, the applicant is, for the time being, of unknown

abode.  For this reason the Commission finds that the period after 16 February

1994 cannot be taken into consideration in assessing the length of the

proceedings (cf. No. 7438/76, Dec. 15.12.80, D.R. 23, p. 5).

36. 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.  In this instance the

circumstances call for an overall assessment (see e.g. Eur. Court HR, Vernillo

v. Italy judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

37. In the applicant's view the proceedings at issue were not complex.  He

refers to the Supreme Court's case law according to which the existence of gas

chambers in concentration camps and the systematic mass exterminations which had

occurred there were facts of common knowledge in regard to which evidence need

not be taken.  The applicant emphasizes that it had taken the expert years to

prepare his report and even when the trial took place he had not even finished

his written report but had to give his expert opinion orally.  The Austrian

courts failed to take sufficient steps in order to accelerate the proceedings.

As early as 1989 it had become clear that the expert would not be able to

deliver his report in due time and that he should be replaced.

38. The Government submit that the case was particularly complex as it

necessitated the preparing of an expert opinion in the field of contemporary

history on a very complicated issue, namely mass extermination of Jews by the

Nazi regime and the existence of gas chambers.  Such an expert report was

necessary in order to refute arguments advanced by so-called "revisionist"

historians.  The expert appointed, Prof. G.J., had to examine numerous documents

on this question which in the course of time had been dispersed over various

archives throughout the world, and in particular documents in archives which had

only recently become accessible.  These circumstances considerably prolonged the

fulfilment of his task.  However, the courts themselves had dealt rather

expeditiously with the applicant's case.  The Regional Court repeatedly urged

the expert to deliver his report and monitored the progress of his research.

Having regard to the particular circumstances of the case the Government find

that the criminal proceedings against the applicant have been conducted within a

reasonable time as required by Article 6 para. 1 (Art. 6-1) of the Convention.

39. The Commission finds that the present case may be considered as being of

some complexity, in particular as, in the opinion of the Vienna Regional Court,

it necessitated the taking of expert opinions.

40. The Commission notes that the period of five years and four months at

first instance is largely attributable to the time spent by the expert on

contemporary history in preparing a report on the killing of persons by use of

toxic gas under the National Socialist Regime.  The Commission observes that it

was the Vienna Regional Court which appointed Prof. G.J. as expert in the

proceedings at issue.  It was the slow progress of the work of the expert which

caused the delay in the proceedings at first instance.  As the expert had been

appointed by the court, delays caused by the expert are in principle

attributable to the Austrian authorities (see Eur. Court HR, Scopelliti v. Italy

judgment of 23 November 1993, Series A no. 278, p. 9, para. 23; Zappia v. Italy

judgment of 26 September 1996, para. 25, to be published in Reports 1996-I).

41. However, the Commission observes that it was in the applicant's interests

that such evidence be reviewed for the purpose of his trial. Indeed, on 22 April

1992, five years after the opening of the proceedings, the defence still

perceived a need for such evidence and it is to be noted that in his application

to the Commission the applicant continued to maintain that the expert was wrong

(cf. Partial Decision as to the Admissibility of 18 October 1995).  Where the

conduct of the defence is such as to seek evidence on a matter of notorious

public knowledge, which under domestic law does not need to be proved and where

the court in its discretion and entirely in the interest of the defence,

instructs that such evidence be taken, then the responsibility for the ensuing

avoidable delays may be shared by the applicant, and is so shared in the present

case.

42. In assessing whether delays caused by a court appointed expert lead to an

unreasonable length of the proceedings at issue the Commission has further to

take into account the object and nature of the requested expert report and

whether the authorities have taken sufficient steps in order to ensure that the

expert submits his report in time.  As regards the first element, the Commission

notes that Prof. G.J. was appointed as expert for contemporary history to give

an opinion on questions of facts which went back to over fifty years and which

involved events which took place in Germany and many European countries during

the German occupation.  The Commission finds that the opinion of an expert on

matters relating to history are of a different nature from expert advice on, for

example, medical issues for which it is normally sufficient that the expert

carries out one examination of the patient before preparing his report.  In the

present case the Government submits, and this is not disputed by the applicant,

that Prof. G.J. had to examine numerous documents on this question which in the

course of time had been dispersed over various archives throughout the world,

and in particular documents in archives which had only recently become

accessible.  It is apparent that such a task cannot be carried out within a

short period.   As regards the second element, the Commission observes that the

Regional Court repeatedly enquired into the progress of the expert's work and,

on several occasions urged the expert to submit his report.  The Commission also

attaches importance to the fact that the Regional Court not merely waited for

the expert report to be concluded but, while it was still waiting for the

report, took all necessary steps in order to ensure that the trial could take

place.

43. Having regard to these particular circumstances, including the conduct of

the parties and authorities, the Commission finds that the proceedings were

concluded within a reasonable time as required by Article 6 para. 1 (Art. 6-1)

of the Convention.

CONCLUSION

44. The Commission concludes, by nine votes to six, that in the present case

there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.F. BUQUICCHIO J. LIDDY

   Secretary President

   to the First Chamber of the First Chamber

(Or. French)

CONCURRING OPINION OF Mr B. CONFORTI

Je souscris à la conclusion de la majorité de la Chambre et même, pour une

large partie, au raisonnement qui l'a conduite à déclarer la non-violation de

l'article 6 par. 1. Comme la majorité, je crois que l'Etat ne peut être tenu

pour entièrement responsable de la durée excessive d'une procédure lorsque,

comme dans le cas d'espèce, la défense a demandé des preuves sur des événements

qui sont universellement connus (et universellement condamnés !), et lorsque la

Cour a donné suite à cette demande dans l'intérêt de la défense elle-même (voir

Rapport, par. 41).

Ceci dit, il est peut-être opportun avant tout de préciser qu'il ne s'agit

pas, comme la majorité le dit, d'un "partage" de responsabilité entre le

requérant et les autorités nationales. Il s'agit plutôt de reconnaître, comme la

Cour l'a récemment affirmé, que l'Etat ne peut être tenu pour responsable

lorsque le comportement des autorités nationales ne constitue pas la "cause

principale" de la longueur de la procédure (voir l'arrêt Ciricosta et Viola c.

Italie du 4 décembre 1995, série A n( 337-A, p. 10, par. 28) et donc lorsque la

cause principale réside dans le comportement du requérant.

Il faut ensuite se demander si dans le cas du requérant, comme dans

d'autres cas semblables, il ne faut pas aller un peu plus loin dans

l'élaboration du critère du "comportement du requérant". A mon avis, dans les

affaires de longueur de procédure, qu'il s'agisse d'une procédure civile ou

d'une procédure pénale, il n'est pas seulement question des comportements

"procéduraux" du requérant, tels que la demande de renvois, la non-utilisation

de recours visant à accélérer le procès, la demande de preuves inutiles, etc. Il

faut au contraire également considérer si, compte tenu du fond du procès, la

personne qui vient se plaindre à Strasbourg a tiré ou non un profit évident dans

le prolongement du procès. Dans l'affirmative, si l'on veut se placer du point

de vue d'une justice matérielle et non formelle, on ne peut considérer le

comportement des autorités judiciaires nationales, même si celles-ci auraient pu

s'opposer au prolongement comme la "cause principale" de la longueur de la

procédure. En d'autres termes, l'intérêt du requérant au prolongement du procès

doit être pris en considération autant que son comportement dans la procédure.

Dans le cas d'espèce le requérant avait tiré un profit certain dans le

prolongement du procès, ses demandes d'expertises et de preuves tout à fait

inutiles visant manifestement à renforcer sa propagande absurde sur la non-

existence de chambres à gaz sous le régime nazi. Cet élément m'a semblé décisif

pour conclure à la non-violation et cela malgré l'attitude très et trop

tolérante du juge national à l'égard des demandes du requérant.

(Or. English)

DISSENTING OPINION OF Mr K. HERNDL

JOINED BY MM A. WEITZEL, L. LOUCAIDES, I. BÉKÉS, A. PERENI?,

Mrs M. HION

I do not share the majority's view that in the present case the criminal

proceedings instituted against the applicant were concluded within a reasonable

time and that consequently there has been no violation of Article 6 para. 1 of

the Convention.

My reasons for disagreeing with that view are the following.

Objectively speaking the length of the incriminated proceedings is

certainly above the threshold established for the element of "reasonable time"

under Article 6 para. 1. A duration of seven years and two months for criminal

proceedings conducted in two instances is certainly too long and ought to have

been declared a breach of Article 6 para. 1, taking into account the

jurisprudence of the Commission in similar cases. The only mitigating

circumstance I can see is the simple fact that the applicant was not taken into

custody and remained in liberty throughout the proceedings (until he absconded,

being currently "of unknown abode"). It might therefore be argued that there was

no apparent necessity for a particular acceleration of the court proceedings in

this case, including the taking of evidence, and that accordingly it was

preferable to obtain additional elements of evidence on certain historic facts.

I can see no other reason why one waited so long for the opinion of the expert

historian. It is, however, legitimate to raise the question whether it was

indeed necessary and advisable to request such an expert opinion, given the

Supreme Court's existing case law according to which "the existence of gas

chambers in concentration camps and the systematic mass extermination which had

occurred there were facts of common knowledge in regard to which evidence need

not be taken".

It is uncontested (see para. 40) that the main reason for the principal

delay which occurred in the present case, was the fact that it took the expert

historian who had been appointed by the court on 28 January 1987 (i.e. shortly

after preliminary investigations against the applicant had been opened) until 29

April 1992 - more than five years -to present his opinion to the court, and then

only orally.

As the majority rightly point out, delays caused by a court appointed

expert are normally attributable to the State party (see para. 40 and the

jurisprudence of the Court quoted there). Accordingly the State party has to be

held responsible for any breach of the Convention resulting from such delays. In

the present case however, the majority introduce the element of "shared

responsibility" and emphasize that "the responsibility for ensuing avoidable

delays may be shared by the applicant, and is so shared by the applicant in the

present case" (see para. 41 in fine).

This would indeed seem to be a new approach. To throw, within the

framework of criminal proceedings, on the applicant the responsibility for the

consequences of procedural requests made by the defence, or to make the

applicant share such responsibility, would in my view run counter to basic

assumptions underlying Article 6. As the Court has stated in the Eckle case, in

criminal matters Article 6 does not require applicants to actively co-operate

with the judicial authorities. No reproach can be levelled against such

applicants for having made full use of the remedies available under the domestic

law (Eur. Court HR, Eckle v. Germany judgment of 15 July 1982, Series A no. 51,

p. 36, para. 82).

Inasmuch as the conduct of the applicant has to be taken into account, it

is difficult to see by what means he did contribute to extending the length of

the actual proceedings. It does not appear from the file that it was the

applicant or the defence which are at the origin of the Investigating Judge's

decision of 28 January 1997 to appoint Mr G.J., an expert on contemporary

history, to prepare a report "on the existence of gas chambers in concentration

camps under the National Socialist regime and their use for mass extermination".

The applicant made no such request, and in fact the defence rested until one

week before the trial when on 22 April 1992 it came forward with new and rather

exaggerated requests for the taking of additional evidence relating to the same

issue.

The unavoidable conclusion is therefore that the responsibility for the

delay in the submission of the expert's opinion lies with the expert himself and

hence with the State party, as the expert had been appointed by the court. It is

true that the Investigating Judge repeatedly took steps with a view to

extracting the opinion from the expert, and that apparently it was the expert

who stalled although his terms of reference had meanwhile been limited to one

concentration camp only (Auschwitz).

In November 1989, almost three years after his appointment, the expert

even informed the court that he could no longer state when his report would be

ready. At that stage, at the latest, it would have been the duty of the

competent organs of the State party to take some decisive action. Again, all

this has to be seen against the background of the Supreme Court's jurisprudence,

that the contested facts were facts of common knowledge. To attempt, in this

context, to justify the expert's five year delay by pointing to the complexity

of his task and the fact that "he had to examine numerous documents on this

question which in the course of time had been dispersed over various archives

throughout the world, and in particular documents in archives which had only

recently become accessible", would seem, in fact, rather incongruous.

To sum up: the length of the proceedings in the present case is excessive

in objective terms. The responsibility for the delays rests with the State

party. It is not shared, and as a matter of principle cannot be shared (except

marginally) by the applicant whose defence was entitled to put forward requests

for the taking of evidence, but in fact did so only on 22 April 1992 and not

earlier.

Finally, if one so wishes, one could contrast the conclusion at which the

majority arrived in the present case with the conclusion of the Commission in

the case of E.L. against Austria (application No. 23019/93). There the

Commission unanimously considered that the length of the proceedings (which

started in September 1988 and which had not been terminated by the end of 1996)

did indeed violate Article 6 para. 1. In the latter case however the applicant

E.L. had submitted, in his defence, about 300 expert opinions and about 12.500

pages of requests for the taking of evidence (including motions that

necessitated the dispatch of letters rogatory to judicial authorities in foreign

countries such as the U.S.A and the then U.S.S.R.), had continuously challenged

for bias judges and prosecutors and had appealed against almost every procedural

decision of the court. Nevertheless the Commission - and rightly so - gave less

weight to the applicant's conduct than to the duty of the State authorities to

respect Article 6, and consequently held that the "reasonable time" had been

exceeded. Should the Commission not have come to a similar conclusion in the

present case?