Search
document

Document text Analytics

VOLKERT v. AUSTRIA

Doc ref: 21024/92 • ECHR ID: 001-45816

Document date: April 16, 1996

Inbound citations: 0
•
Cited paragraphs: 0
•
Outbound citations: 0

VOLKERT v. AUSTRIA

Doc ref: 21024/92 • ECHR ID: 001-45816

Document date: April 16, 1996

Cited paragraphs only

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21024/92

Ernst Volkert

against

Austria

REPORT OF THE COMMISSION

(adopted on 16 April 1996)

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . .1

PART I : STATEMENT OF THE FACTS. . . . . . . . . . . . . . .3

PART II : SOLUTION REACHED. . . . . . . . . . . . . . . . . .4

INTRODUCTION

1. This Report relates to the application introduced under Article

25 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms by Ernst Volkert against Austria on 2 September

1992. It was registered on 2 December 1992 under file No. 21024/92.

The applicant was represented by Mr. K. Bernhauser.

The Government of Austria were represented by their Agent,

Mr. Christian Strohal, Minister, Deputy Legal Adviser.

2. On 27 June 1995 the Commission (First Chamber) declared the

application admissible. It then proceeded to carry out its task

under Article 28 para. 1 of the Convention which provides as follows:

"In the event of the Commission accepting a petition referred to

it:

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination

of the petition and, if need be, an investigation, for the

effective conduct of which the States concerned shall furnish all

necessary facilities, after an exchange of views with the

Commission;

b. it shall at the same time place itself at the disposal of

the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for Human Rights

as defined in this Convention."

3. The Commission (First Chamber) found that the parties had reached

a friendly settlement of the case and on 16 April 1996 it adopted this

Report, which, in accordance with Article 28 para. 2 of the Convention,

is confined to a brief statement of the facts and of the solution

reached.

The following members were present when the Report was adopted:

MM. C.L. ROZAKIS, President

E. BUSUTTIL

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

A. PERENIC

C. BÎRSAN

K. HERNDL

PART I

STATEMENT OF THE FACTS

4. The applicant is an Austrian citizen, born in 1945 and living in

Vienna.

5. On 10 May 1982 the applicant wrote to the Public Prosecution at

Vienna Regional Court (Landesgericht) accusing himself of negligent

bankruptcy (fahrlässige Krida). At the same time he made a request to

the Vienna Regional Court for composition proceedings

(Ausgleichsantrag). On 14 May 1982 the prosecution submitted the case

to the commercial crime department of the police for investigations.

6. On 22 February 1985 the Public Prosecution filed an indictment

against the applicant and another businessman.

7. On 15 September 1988 the applicant was convicted by the Vienna

Regional Court on seven counts of negligent bankruptcy, one count of

aggravated fraud (schwerer Betrug) and two counts of fraudulent

bankruptcy.

8. The applicant was sentenced to 30 months' imprisonment. In

respect of part of the sentence (20 months imprisonment) the applicant

was granted a 3 year period of probation. On 17 May 1989 the applicant

lodged an appeal as to the sentence and a plea of nullity. The latter

remedy was partly granted by the Supreme Court (Oberster Gerichtshof)

which on 20 March 1990 in part confirmed the judgment appealed from but

sent the case back for a new trial in the respect of one count of

aggravated fraud and consequently for a new determination of the

sentence.

9. On 5 November 1991 the applicant was acquitted on one count of

aggravated fraud but he was given an additional sentence of 23 months

and 5 days imprisonment for the offenses with regard to which the

Supreme Court had confirmed the applicants' culpability.

10. On 8 April 1992 the Vienna Court of Appeal following an appeal

lodged by the Public Prosecution amended the sentence to 27 months and

5 days imprisonment granting a period of probation of 2 years with

regard to twenty months of this sentence.

11. The applicant complained of the length of the criminal

proceedings under Article 6 para. 1 of the Convention.

PART II

SOLUTION REACHED

12. Following the decision on the admissibility of the application,

the Commission (First Chamber) placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the parties

to submit any proposals they wished to make.

13. In accordance with the usual practice, the Chamber Secretary,

acting on the Commission's instructions, contacted the parties to

explore the possibilities of reaching a friendly settlement.

14. By letter dated 18 September 1995 the applicant proposed that he

would be prepared to accept an amount of 75.000 AS in friendly

settlement.

15. By letter dated 12 January 1996, the respondent Government

informed the Commission that they agreed on the terms of a friendly

settlement with the applicant and submitted the following declaration:

[Translation]

"1. The Austrian Government will pay to the applicant a sum of

altogether AS 75,000 as compensation in respect of any

possible claims relating to the present application,

including all counsel's fees and expenses.

2. The applicant declares his application settled.

3. The applicant waives any further claims against the

Republic of Austria relating to the present application."

[German]

"1. Die Regierung der Republik Österreich zahlt dem

Beschwerdeführer als Ausgleich für sämtliche etwaigen

Ansprüche einschließlich Anwaltskosten und Auslagen im

Zusammenhang mit der vorliegenden Individualbeschwerde

einen Betrag von insgesamt ÖS 75.000.

2. Der Beschwerdeführer erklärt seine obengenannte Beschwerde

als erledigt.

3. Der Beschwerdeführer verzichtet auf die Geltendmachung

allfälliger weiterer Forderungen gegen Österreich, die mit

dem Gegenstand der Beschwerde zusammenhängen."

16. At its session on 16 April 1996, the Commission noted that the

parties had reached an agreement regarding the terms of a settlement.

It further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

17. For these reasons, the Commission adopted the present Report.

Secretary to the First Chamber President of the First Chamber

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

LEXI

Lexploria AI Legal Assistant