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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 20114/92

Alexander Kovar

against

Austria

REPORT OF THE COMMISSION

(adopted on 6 April 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

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

II. ESTABLISHMENT OF THE FACTS

(paras. 7-12). . . . . . . . . . . . . . . . . . . . . .2

III. OPINION OF THE COMMISSION

(paras. 13-26) . . . . . . . . . . . . . . . . . . . . .3

A. Complaint declared admissible

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

B. Point at issue

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

C. The alleged violation of Article 6 para. 1

of the Convention

(paras. 15-25). . . . . . . . . . . . . . . . . . .3

CONCLUSION

(para. 26). . . . . . . . . . . . . . . . . . . . .4

APPENDIX I : DECISION OF THE COMMISSION AS TO THE

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

I. INTRODUCTION

1. The present Report concerns Application No. 20114/92 by

Alexander Kovar against Austria, introduced on 25 May 1992 and

registered on 12 June 1992.

2. The applicant, born in 1952, is an Austrian national and resident

in Vienna. He is a business man by profession. Before the Commission

he is represented by Mr. K. Bernhauser, 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

1 December 1993. 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

2 September 1994. 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 6 April 1995 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

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 May 1990 the Vienna Regional Criminal Court (Landesgericht

für Strafsachen) received a criminal information (Strafanzeige) from

the Lower Austrian Security Office (Sicherheitsbüro) stating that on

27 March 1990 S., a businessman, had been beaten up in his office by

persons unknown who demanded payment of US $ 78,000. S. had denounced

the applicant, who was his competitor and business partner, to be

behind this incident.

8. On 1 August 1990 the Vienna Public Prosecutor's Office

(Staatsanwaltschaft) requested the Vienna Regional Court

(Landesgericht) to open preliminary investigations against the

applicant on the suspicion of having committed inter alia attempted

blackmail (versuchte Erpressung). By letter dated 3 August 1990 the

applicant informed the Court that he had appointed Mr. Bernhauser as

his counsel.

9. On 6 September 1990 the applicant was questioned as a suspect by

the Investigating Judge at the Vienna Regional Criminal Court. On

28 September 1990 the Investigating Judge questioned S. as a witness.

10. On 15 and 22 October 1990 an additional criminal information

(Nachtragsanzeige) was brought to the attention of the Prosecutor's

Office, according to which S. had again been threatened by telephone

on October 3, 8, 14 and 16, 1990 respectively, and been told to effect

payment.

11. On 31 January 1991 the Prosecutor's Office requested the Regional

Court to include the additional criminal information in the pending

preliminary investigations.

12. On 26 June 1992 the Vienna Regional Criminal Court, upon the

Public Prosecutor's request of 23 June 1992, discontinued the

proceedings against the applicant on the ground that the Prosecutor did

not see any further reason to pursue these proceedings.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

13. 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

14. 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

15. The applicant complains under Article 6 para. 1 (Art. 6-1) about

the length of criminal proceedings against him.

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

following provision:

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

everyone is entitled to a ... hearing within a reasonable time

by (a) ... tribunal ..."

17. The Government consider that the proceedings lasted from

1 August 1990 until 26 June 1992. Referring to the case-law of the

Convention organs, they argue that the case was complex, as there was

little evidence to show in what direction inquiries should be

conducted. Moreover, they submit that the Public Prosecutor waited

before taking his final decision as he could reasonably assume that

further attempts to blackmail the victim might occur. The Government,

therefore, maintain that the overall duration of the proceedings of

less than two years cannot be considered as being unreasonable.

18. The Commission recalls that the right, in criminal matters, to

a hearing within a reasonable time covers the initial period of

investigations starting at the moment the person was "charged",

irrespective of whether his case has come before a trial court or not

(see, Eur. Court H.R., Deweer judgment of 27 February 1980, Series A

no. 35, pp. 21 et seq., paras 41-47; Viezzer judgment of

19 February 1991, Series A no. 196-B, p. p. 19 et seq., paras. 9 and

14-175).

19. As regards the period to be considered, the Commission recalls

that the moment a person is "charged" within the meaning of Article 6

(Art. 6) may occur on a date prior to the case coming before the trial

court, such as the date of arrest, the date when the person concerned

was officially notified that he would be prosecuted or the date when

the preliminary investigations were opened (see Eur. Court H.R., Foti

judgment of 10 December 1982, Series A no. 56, p. 18, para. 52 with

further references).

20. The Commission, therefore, agreeing with the Government,

considers that the proceedings at issue started on 1 August 1990, when

the Public Prosecutor requested that preliminary investigations be

opened against the applicant. They lasted until 26 June 1992, when the

investigations were discontinued. Thus, the overall duration of the

proceedings was one year and almost eleven months.

21. The reasonableness of the length of proceedings is to be

determined with reference to the criteria laid down in the Court's

case-law and in the light of the circumstances of the case, which in

this instance call for an overall assessment (Eur. Court H.R. Boddaert

judgment of 12 October 1992, Series A no. 235-B, p.82, para. 36).

22. The present case, relating to charges of attempted blackmail, was

not of any particular complexity. No delays are attributable to the

applicant.

23. As regards delays attributable to the authorities, the Commission

notes that there was a first period of inactivity of three and a half

months between mid October 1990, when an additional criminal

information was brought to the attention of the Public Prosecutor's

Office, and 31 January 1991 when the Public Prosecutor requested that

this additional criminal information be joined to the pending

proceedings. Further, the competent authorities remained inactive for

a second period of one year and almost four months between the

beginning of February 1991 and 26 June 1992, when the proceedings were

discontinued.

24. The Commission recalls that the proceedings never attained trial

stage. Although there were considerable delays, it cannot be said that

the lapse of time during the preliminary investigations weighed as

heavily on the applicant as a comparable lapse of time would have

weighed on a person waiting for the outcome of his trial. The applicant

was questioned only once by the Investigating Judge as a suspect and

was not taken in detention on remand. Moreover, there is no indication

that the applicant was particularly affected by the pending

proceedings.

25. In these circumstances, the Commission finds that a period of one

year and almost eleven months of the criminal proceedings against the

applicant can still be regarded as "reasonable" for the purposes of

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

CONCLUSION

26. The Commission concludes, unanimously, that in the present case

there has been no violation of Article 6 para. 1 of the Convention.

Secretary to the First Chamber President of the First Chamber

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

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KOVAR, Alexander

KOVAR, Alexander

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