Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 16925/90

Franz KOFLER

against

Austria

REPORT OF THE COMMISSION

(adopted on 17 January 1995)

TABLE OF CONTENTS

Page

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

PART I : STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 2

PART II : SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . 3

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 Mr. Franz Kofler against Austria on

9 May 1990. It was registered on 25 July 1990 under file No. 16925/90.

The applicant was represented by Mr. Albert Heiss, lawyer,

Innsbruck.

The Government of Austria were represented by their Agent,

Mr. Franz Cede.

2. On 11 May 1994 the Commission (First Chamber) declared the

application partially admissible to the extent that it related to the

length of the proceedings. 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 found that the parties had reached a friendly

settlement of the case and on 17 January 1995 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:

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

PART I

STATEMENT OF THE FACTS

4. On 30 January 1983 an investigating judge decided to institute

proceedings against the applicant and two others on suspicion of

having committed aggravated fraud by holding themselves out as

publishers of a holiday catalogue which would be widely distributed,

when in fact they merely intended to receive payments for entries in

a catalogue.

5. In its judgment of 27 April 1989, served on the applicant on

14 July 1989, the Innsbruck Regional Court (Landesgericht) noted that

it was not denied that the defendants had published the advertisements

for entries in their catalogue, and rejected the applicant's contention

that the advertisements had all been simply wrongly phrased. It found

the intention to deceive customers was clear, and the discrepancy

between the actual text used and what the defendants claimed in court

confirmed this. The court noted:

[Translation]

"It is clear from the informations laid by the police and the

witness statements and certificates attached thereto which

persons were induced to pay which sums and when. The conviction

at point A and the related findings of fact are based on this

evidence.

Some of these persons were heard as witnesses in the context of

the trial or the pre-trial proceedings. It is in the nature of

things that the witnesses could no longer remember so clearly

events which happened so long ago. However, all these witnesses

gave the impression that they had been stating the truth when

their informations were laid, such that the findings of fact and

the conviction were based on the statements made then ..."

6. It found that the facts as established could lead only to the

conclusion that the defendants all had the requisite criminal intent,

as they had all worked together in the scheme (the applicant as

treasurer) over a lengthy period of time.

7. The applicant made a plea of nullity (relating to his conviction)

and an appeal against sentence.

8. On 6 December 1989 the Supreme Court (Oberster Gerichtshof)

rejected the applicant's plea of nullity.

9. The applicant's appeal against sentence was rejected by the

Innsbruck Court of Appeal (Oberlandesgericht) on 15 February 1990. The

applicant's representative received the judgment on 2 March 1990.

PART II

SOLUTION REACHED

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

the Commission 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.

11. 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.

12. Following an exchange of correspondence, the Commission

considered the question of a settlement on 18 October 1994 and on

7 December 1994, and made specific settlement proposals. The terms were

included in a Declaration which was returned to the Commission by the

applicant on 27 December 1994 and by the Government on 5 January 1995.

The settlement provided as follows:

[Translation]

"Declaration by the parties with a view to a friendly settlement

In connection with Application No. 16925/90 by Mr. Franz Kofler,

the parties, with reference to Article 28 para. 1 (b) of the European

convention on Human Rights and to the assistance of the European

Commission of Human Rights, declare as follows:

1. The Government of the Republic of Austria will pay the sum

of AS 50,000 as compensation in respect of any possible claims relating

to the present application. This sum includes AS 25,000 in respect of

costs and expenses incurred in the proceedings before the Commission.

The sum of AS 50,000 will be paid to the applicant's representative,

Mr. Albert Heiss.

2. The applicant declares the above-mentioned application to

be settled.

3. The applicant waives any further claims against the Republic

of Austria relating to the present application."

[German]

"Erklärungen der Parteien zur gütlichen Regelung

In der Individualbeschwerde Nr. 16925/90 des Herrn Franz Kofler

verständigen sich die Parteien unter Bezugnahme auf Artikel 28 Abs. 1 b

der Europäischen Konvention zum Schutze der Menschenrechte und

Grundfreiheiten und unter Mitwirkung der Europäischen Kommission für

Menschenrechte auf die nachstehende gütliche Regelung:

1. Die österreichische Regierung zahlt als Ausgleich für

sämtliche etwaigen Ansprüche im Zusammenhang mit der vorliegenden

Individualbeschwerde die Summe von AS 50,000.00. Dieser Betrag

umfaßt AS 25,000.00 hinsichtlich der Kosten und Auslagen, die im

Rahmen des Verfahrens vor der Kommission entstanden sind.

Der Betrag von AS 50,000.00 wird an Herrn Dr. Albert Heiss, den

Verfahrensbevollmächtigten des Beschwerdeführers, überwiesen.

2. Der Beschwerdeführer erklärt seine oben genannte Beschwerde

als erledigt.

3. Der Beschwerdeführer verzichtet auf die Geltendmachung

alfälliger weiterer Forderungen gegen die Republik Österreich im

Zusammenhang mit dem der Beschwerde zugrundeliegenden

Sachverhalt."

13. At its session on 17 January 1995, 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.

14. 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)

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KOFLER v. AUSTRIA

KOFLER v. AUSTRIA

LEXI