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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21611/93

Helmut Haslhofer

against

Austria

REPORT OF THE COMMISSION

(adopted on 15 May 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-6). . . . . . . . . . . . . . . . . . . . . . . . . 1

II. ESTABLISHMENT OF THE FACTS

(paras. 7-15) . . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 16-27). . . . . . . . . . . . . . . . . . . . . . . . 3

A. Complaint declared admissible

(para. 16) . . . . . . . . . . . . . . . . . . . . . . . 3

B. Point at issue

(para. 17) . . . . . . . . . . . . . . . . . . . . . . . 3

C. The alleged violation of Article 6 para. 1 of

the Convention

(paras. 18-26) . . . . . . . . . . . . . . . . . . . . . 3

CONCLUSION

(para. 27) . . . . . . . . . . . . . . . . . . . . . . . 4

APPENDIX : DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION . . . . . . . 5

I. INTRODUCTION

1. The present Report concerns Application No. 21611/93 by

Helmut Haslhofer against Austria, introduced on 18 December 1992 and

registered on 2 April 1993.

2. The applicant, born in 1934, is an Austrian national and resident

at Kirchham. He is an insurance agent by profession. Before the

Commission he is represented by Mr. T. Höhne, a lawyer practising in

Vienna.

The Government of Austria are represented by their Agent,

Ambassador F. Cede, Head of the International Law Department at the

Federal Ministry of Foreign Affairs.

3. The application was communicated to the respondent Government on

12 October 1994. Following an exchange of memorials, the applicant's

complaint about the length of the criminal proceedings against him

(Article 6 para. 1 of the Convention) was declared admissible on

6 September 1995. The decision on admissibility is appended to this

Report.

4. 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 15 May 1996, in accordance with

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

present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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

the facts found disclose a violation of the Convention by the Austrian

Government.

6. The text of this 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

7. On 14 July and 15 July 1986 the General Police Directorate

(Generaldirektion für die öffentliche Sicherheit) questioned the

applicant on suspicion of having committed grave fraud and fraudulent

conversion. The investigations concerned a series of frauds committed

against the Austrian Bundesländer Insurance Company, involving

initially about one hundred suspects and total losses amounting to

AS 130 million.

8. On 10 September 1986 the Vienna Regional Court (Landesgericht),

upon the request of the Vienna Federal Police Authority

(Bundespolizeidirektion) of 4 September 1986, instituted preliminary

investigations against the applicant. On 17 February 1987 the

applicant was questioned by the Investigating Judge.

9. On 26 August 1987 the Vienna Public Prosecutor's Office

(Staatsanwaltschaft) filed the bill of indictment charging the

applicant with having acted as an accessory to fraudulent conversion.

The bill of indictment related to offences committed by altogether 21

accused.

10. The trial of the accused started before the Vienna Regional Court

on 20 January 1988. It continued over altogether 34 days between

January and June, a last hearing being held in September 1988. The

concept of the trial was to hold the hearings concerning the various

accused individually so that they only had to appear on certain days

of the trial.

11. Hearings relating to the applicant took place on 21 January and

8 February 1988. At the further hearing of 5 May 1988 the Vienna

Public Prosecutor's Office extended the bill of indictment and also

charged the applicant with grave fraud (schwerer Betrug). Several

motions for a further taking of evidence were filed. However, the

Regional Court dismissed these additional requests and closed the

trial. The applicant was convicted of having acted as an accessory to

fraudulent conversion and sentenced to four years' imprisonment.

12. On 31 January 1990 the applicant was served with the written copy

of the judgment. On 14 February 1990 he lodged a plea of nullity

(Nichtigkeitsbeschwerde) and an appeal (Berufung) with the Supreme

Court (Oberster Gerichtshof).

13. On 6 September 1990 the Supreme Court quashed the judgment and

referred the case back to the Vienna Regional Court.

14. On 2 December 1991 proceedings were resumed before the Vienna

Regional Court. On 4 December 1991 the case was referred back to the

Investigating Judge.

15. On 3 August 1992 the Vienna Public Prosecutor's Office dropped

the charges against the applicant, and the Regional Court discontinued

the criminal proceedings. The decision was served upon the applicant

on 12 August 1992.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that the criminal charges against him were not determined within a

reasonable time.

B. Point at issue

17. The point at issue is whether there has been a violation of

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

C. The alleged violation of Article 6 para. 1 (Art. 6-1) of the

Convention

18. The applicant submits that the criminal proceedings against him

have exceeded a reasonable time. He invokes Article 6 para. 1

(Art. 6-1) of the Convention which includes the following provision:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a ...

hearing within a reasonable time by (a) ... tribunal ..."

19. The Government maintain that the relevant period to be considered

under Article 6 para. 1 (Art. 6-1) started on 10 September 1986 when

the Vienna Regional Court opened investigation proceedings against the

applicant, and ended on 3 August 1992, when the proceedings were

discontinued.

20. The Commission recalls that, in criminal matters, the "reasonable

time" referred to in Article 6 para. 1 (Art. 6-1) begins to run as soon

as a person is "charged" which may be defined as "the official

notification given to an individual by the competent authority of an

allegation that he has committed an offence", a definition that also

corresponds to the test whether "the situation of the [suspect] has

been substantially affected" (cf. Eur. Court H.R., Eckle judgment of

15 July 1982, Series A no. 51, p. 33, para. 73 with further

references). In the present case, the time to be taken into

consideration therefore started on 14 July 1986, when the applicant was

questioned by the General Police Directorate and informed about the

existence of a suspicion against him. Following his conviction and

successful appeal proceedings, the criminal proceedings were

discontinued on 3 August 1992, i.e. more than six years later.

21. As regards the question of reasonableness, the Government,

referring to the case-law of the Convention organs, argue that the

length of the proceedings was mainly due to the complexity of the case.

They consider that no considerable delays were imputable to the

Austrian authorities. The applicant objects to this view.

22. 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 the complexity of the

case, 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 Eur. Court H.R., Ficara judgment of 19 February

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

23. The Commission finds that the proceedings were of some

complexity, involving numerous suspects and counts of fraud.

24. There were no significant delays caused by the applicant.

25. As regards the conduct of the judicial authorities, the

Commission has considered the Government's explanations as to the

approach taken by the authorities in dealing with the applicant's case

as one of a series of fraud cases. The Commission finds in particular

there was a delay of almost twenty-one months between the pronouncement

of the judgment against the applicant on 5 May 1988 and the service of

the written version of this judgment, which has not been justified.

In this respect, the Commission recalls that it is for Contracting

States to organise their legal systems in such a way that their courts

can meet this requirement (see Eur. Court H.R., Vocaturo judgment of

24 May 1991, Series A no. 206-C, p. 32, para. 17). The Commission

further observes that, having regard to the overall length of the

proceedings at the stage of the Supreme Court's judgment of 6 September

1990, the authorities failed duly to expedite the ensuing proceedings.

26. Having regard to all circumstances, the Commission cannot regard

as "reasonable" a lapse of time of more than six years in the instant

case.

CONCLUSION

27. The Commission concludes unanimously that there has been a

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

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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HASLHOFER v. AUSTRIA

HASLHOFER v. AUSTRIA

LEXI