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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 16906/90

Gert Lagler

against

Austria

REPORT OF THE COMMISSION

(adopted on 18 October 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-12) . . . . . . . . . . . . . . . . . . . . . . . . . . .2

III. OPINION OF THE COMMISSION

(paras. 13-22). . . . . . . . . . . . . . . . . . . . . . . . . . .3

A. Complaint declared admissible

(para. 13). . . . . . . . . . . . . . . . . . . . . . . . . .3

B. Point at issue

(para. 14). . . . . . . . . . . . . . . . . . . . . . . . . .3

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

(paras. 15-21). . . . . . . . . . . . . . . . . . . . . . . .3

CONCLUSION

(para. 22). . . . . . . . . . . . . . . . . . . . . . . . . .4

APPENDIX : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . . . . . . . . . . . .5

I. INTRODUCTION

1. The present Report concerns Application No. 16906/90 introduced

on 3 July 1990 against Austria and registered on 20 July 1990.

The applicant is a Austrian national born in 1949 and resident

in Vienna.

The respondent Government, Austria, are represented by their

Agent, Ambassador F. Cede, head of the International Law Department

at the Federal Ministry for Foreign Affairs.

2. The application was communicated to the Government on

13 February 1992. 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 5 April 1995. 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 18 October 1995 in accordance

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

being present:

MM. C.L. ROZAKIS, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 criminal

proceedings before the Vienna Regional Court (Landesgericht).

7. The applicant was arrested on 20 April 1982 in connection with

various charges of commercial impropriety. He was detained on remand

until 18 June 1982.

8. On 24 September 1984 a formal indictment was brought, accusing

the applicant of negligent insolvency. On 10 October 1984 other

charges of commercial impropriety were dropped.

9. On 30 March 1989 the proceedings were adjourned. On 3 May 1989

the prosecution requested a third accountant's report in the case, a

request which the court granted on 5 June 1989. On 27 October 1989

the prosecution requested the bringing of criminal proceedings

against the applicant for interference with documents relevant to the

proceedings. The expert who had been appointed on 5 June 1989 was

removed on 16 August 1990 due to delays in preparing his opinion, and

a further expert was appointed on 3 September 1990. That expert

informed the court that he was overworked, and a further expert was

appointed on 25 September 1990. That expert reported to the court on

30 October 1991, after having made several interim reports and having

complained that the applicant did not co-operate.

10. On 20 March 1992 the court issued a search warrant against the

applicant. The applicant's home and office premises were searched on

10 April 1992 and documents were seized. The premises of an adviser

of the applicant were also searched. Appeals against the searches

were unsuccessful.

11. The applicant's trial was due to take place on 29 October 1993.

Immediately before it, he submitted over 1,000 pages of

documentation. It transpired in the course of the hearing that the

applicant's representative was not fully aware of the contents of the

documentation, and the applicant alleged, for the first time, that at

the time of the events in question, he was not responsible for this

actions. The proceedings were adjourned for the preparation of a

psychiatric report on the applicant.

12. The psychiatric report has not been submitted, and the

proceedings remain adjourned.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that his case has not been heard within a reasonable time.

B. Point at issue

14. The only point at issue is whether the length of the proceedings

complained of has 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

15. 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 ..."

16. The proceedings in question concern criminal charges of

financial impropriety. They accordingly fall within the scope of

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

17. These proceedings, which began on 20 April 1982 with the

applicant's arrest, are still pending. They have therefore lasted

some 13 and a half years to date.

18. The Commission recalls that the reasonableness of criminal

proceedings must be assessed in the light of the particular

circumstances of the case and with the help of the following

criteria: the complexity of the case, the conduct of the parties and

the conduct of the authorities dealing with the case (see Eur. Court

H.R., Ferraro judgment of 19 February 1991, Series A no. 197-A, p. 9,

para. 17).

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

question is due to the complexity of the case and the applicant's

conduct. They point out that there were no lengthy periods of

judicial inactivity, and that on several occasions the applicant was

granted time to try to complete his book-keeping.

20. The Commission considers that the applicant's conduct has

undoubtedly made the prosecution's task in the present case very

difficult. There is, however, no obligation on a defendant to

contribute to the smooth running of a criminal case, and even with

the present applicant, the period of some 13 and a half years before

a first instance judgment does not comply with the requirements of

Article 6 (Art. 6) of the Convention.

21. 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

22. 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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LAGLER v. AUSTRIA

LAGLER v. AUSTRIA

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