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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 20178/92

Franz Hengl

against

Austria

REPORT OF THE COMMISSION

(adopted on 4 September 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-9). . . . . . . . . . . . . . . . . . . . . . . . . . . .1

II. ESTABLISHMENT OF THE FACTS

(paras. 10-17). . . . . . . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 18-27). . . . . . . . . . . . . . . . . . . . . . . . . . .5

A. Complaint declared admissible

(para. 18). . . . . . . . . . . . . . . . . . . . . . . . . .5

B. Point at issue

(para. 19). . . . . . . . . . . . . . . . . . . . . . . . . .5

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

(paras. 20-26). . . . . . . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 27). . . . . . . . . . . . . . . . . . . . . . . . . .6

APPENDIX I : PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . .7

APPENDIX II : FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . 12

I. INTRODUCTION

1. The present Report concerns Application No. 20178/92 introduced

on 15 January 1992 against Austria and registered on 17 June 1992.

2. The applicant is an Austrian national born in 1940 and resident

in Vienna.

3. The applicant is represented before the Commission by

Mr. W. Blaschitz, a lawyer practising in Vienna.

4. The respondent Government, Austria, are represented by

Mr. F. Cede, Head of the International Law Department at the Federal

Ministry of Foreign Affairs.

5. On 1 December 1993 the application was declared partially

admissible, and the remainder concerning the length of the

proceedings was communicated to the Government. Following an

exchange of written observations, the complaint relating to the

length of proceedings (Article 6 para. 1 of the Convention) was

declared admissible on 29 November 1995. The decision on

admissibility is appended to this Report.

6. On 29 April 1996 the Secretary to the Commission met

representatives of the Government and the applicant in Vienna and

attempted to reach a settlement of the case.

7. 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 4 September 1996 in accordance

with Article 31 para. 1 of the Convention, the following members

being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

8. In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by the

Republic of Austria.

9. 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

10. Criminal proceedings were opened against the applicant on

10 September 1982 under file number 12 Vr 9703/82. The formal

preliminary investigation began on 12 June 1986. In the indictment

of 12 August 1988 the applicant was accused of various fraud offences

committed between 1980 and 1986. He was later also accused of

threatening, amongst others, a legal aid lawyer.

11. From 2 July 1986 until 30 June 1987 the applicant was in

detention on remand. He was released because the Vienna Court of

Appeal (Oberlandesgericht) refused to extend the permitted period of

detention in that, given the complexity of the case, it was unlikely

that the indictment and trial would be in the foreseeable future.

12. On 2 June 1987 the applicant's privately employed lawyer was

questioned by the Vienna Regional Court as to some AS 1,000,000 which

had been deposited with him by the applicant in 1984, before the

lawyer had been representing the applicant. The lawyer gave

information as to how and when he had received the sum, but declined,

by reference to Article 153 of the Code of Criminal Procedure

(Strafprozeßordnung), to give information as to smaller sums (of some

AS 100,000) which he had received. Article 153 of the Code of

Criminal Procedure provides for a limited right for witnesses to

refuse to give evidence when they run the risk of criminal

proceedings or direct financial disadvantage.

13. On 5 June 1987 the Review Chamber (Ratskammer) of the Regional

Court excluded the lawyer from further representing the applicant.

The Chamber relied on Article 40 para. 1 of the Code of Criminal

Procedure which prohibits representation by persons who have been

summoned as witnesses in the trial, and states that the Review

Chamber shall determine whether persons who have been have heard as

witnesses at an earlier stage should be excluded from representation.

The Review Chamber noted that the lawyer had declined to answer

certain questions by reference to Article 153 of the Code of Criminal

Procedure, and found that there was a risk of a conflict of

interests. Accordingly, the lawyer was excluded. The applicant's

appeal against the decision of 5 June 1987 was rejected by the Vienna

Court of Appeal (Oberlandesgericht) on 6 December 1988 on the ground

that such decisions of the Review Chamber could not be appealed.

14. On 31 January 1990 the trial (Hauptverhandlung) was opened. The

applicant was in hospital. On 9 February 1990 the President of the

Regional Court ordered the applicant's detention on remand

(Untersuchungshaft) on the ground that there was a risk that he would

abscond and that he would commit criminal offences. The Review

Chamber rejected his appeal against this decision on 28 February. On

21 February the Regional Court had refused an application for release

(Enthaftungsantrag). On 20 March 1990 the Vienna Court of Appeal

rejected the applicant's complaints (Beschwerden) against the

decisions of 21 and 28 February.

15. The applicant was convicted on 18 May 1990 after a 24-day trial

and sentenced to a six years' prison sentence. The Regional Court

ordered that he should remain in detention on remand. The

applicant's complaint against the remand order was rejected by the

Court of Appeal on 21 June 1990.

16. The applicant's plea of nullity was rejected in part by the

Supreme Court on 19 September 1991. On 17 October 1991 the Supreme

Court dealt, in a public hearing, with the remainder of the plea of

nullity and with the applicant's appeal against sentence. It

accepted the plea of nullity in part and remitted the question of

sentence in respect of part of the conviction to the Regional Court.

The remainder of the plea of nullity was rejected, and the prison

sentence reduced to five and a half years. The charges in respect of

which the question of sentence had been remitted to the Regional

Court were dropped on 9 January 1992.

17. The judgment of the Supreme Court was received by the

applicant's representative on 30 January 1992.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

18. The Commission has declared admissible the applicant's complaint

that his case was not heard within a reasonable time.

B. Point at issue

19. 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

20. 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 ..."

21. The proceedings in question concerned criminal charges against

the applicant. The proceedings accordingly fall within the scope of

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

22. These proceedings, which began in September 1982 and ended with

the Supreme Court's judgment of 17 October 1991 which was served on

the applicant's representative on 30 January 1992, lasted over nine

years.

23. The Commission recalls that the reasonableness of proceedings

must be assessed in the light of the particular circumstances of the

case (see Eur. Court HR, Ficara v. Italy judgment of 19 February

1991, Series A no. 196-A, p. 9, para. 17).

24. According to the Government, the length of the period in

question was due to the complexity of the case in that there was an

extensive network of relationships which had to be investigated in

the course of the economic offences alleged, with 110 private

parties, 180 witnesses before the investigating judge and a file

running to 24 volumes plus annexes at the date of the indictment.

They also point to the applicant's conduct, in particular in

connection with his interest in procrastinating as much as possible,

and cited as one example the applicant's absence from the beginning

of the trial.

25. The Commission accepts that the case involved a certain further

complexity, but the legal issues were clear. Moreover, whilst the

applicant must bear a certain responsibility for some of the length

of the proceedings, the overall period of over nine years has not

been convincingly explained.

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 J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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HENGL v. Austria

HENGL v. Austria

LEXI