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EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 20566/92

W. S.

against

Austria

REPORT OF THE COMMISSION

(adopted on 11 January 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

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

II. ESTABLISHMENT OF THE FACTS

(paras. 7 - 24) . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 25 - 36) . . . . . . . . . . . . . . . . 4

A. Complaint declared admissible

(para. 25) . . . . . . . . . . . . . . . . 4

B. Point at issue

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

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

the Convention

(paras. 27 - 35) . . . . . . . . . . . . . 4

CONCLUSION

(para. 36) . . . . . . . . . . . . . . . . . 5

APPENDIX : DECISION ON THE ADMISSIBILITY OF THE

APPLICATION. . . . . . . . . . . . . . . . . 6

I. INTRODUCTION

1. The present Report concerns Application No. 20566/92 by W. S.

against Austria, introduced on 22 July 1992 and registered on

31 August 1992.

2. The applicant, born in 1961, is an Austrian national and resident

at Günselsdorf. He is a taxi driver by profession. Before the

Commission he is represented by Mr. F. Langmayr, 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

2 December 1992. 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

8 March 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 11 January 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. F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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. In 1987 criminal investigations started against various persons

on the suspicion of having committed fraud in the context of a real

estate business. In this context, preliminary investigations against

the applicant were instituted by the Vienna Regional Court

(Landesgericht) on 21 August 1987. In these proceedings the applicant

was assisted by Mr. Langmayr as his defence counsel.

8. In the course of the investigations, more than one hundred

victims of frauds were heard as witnesses. The preliminary

investigations terminated on 2 September 1988.

9. On 21 April 1989 the Vienna Public Prosecutor's Office (Staats-

anwaltschaft) preferred the indictment (Anklageschrift) against the

applicant and fourteen co-accused. They were charged with having

professionally committed fraud in that they pretended to be honest

estate agents employed by an estate agency in Vienna, and thereby

received payments in view of accommodation which they did not and never

intended to supply to the clients concerned. The indictment referred

to more than one hundred cases and a total damage caused by the

offences which amounted to AS 6.5 million.

10. The bill of indictment was received by the Vienna Regional Court

on 12 May 1989.

11. On 28 June 1989 the bill of indictment was served upon the

applicant's defence counsel. In July 1989 two of the applicant's

co-accused appealed against the bill of indictment. Following

inquiries concerning the whereabouts of two other accused, the bill of

indictment could only be served upon them in November 1989. One of

these two accused also appealed against the bill of indictment.

However, he withdrew his appeal in February 1990. On 11 May 1990 the

Vienna Court of Appeal (Oberlandesgericht) finally committed the

accused for trial. Meanwhile, the Investigating Judge had also decided

on various requests lodged by the Public Prosecutor's Office regarding

the joinder of other proceedings against one of the accused, as well

as the discontinuation of the prosecution regarding some aspects of the

charges.

12. On 18 May 1990 the Presiding Judge at the Vienna Regional Court

received the files. In July 1990 the criminal records regarding the

accused were received by the Regional Court. Furthermore, on

27 July 1990 the Presiding Judge ordered that the criminal files

concerning previous convictions of some of the accused be obtained.

13. On 6 March 1991 the dates for the trial against the accused were

fixed. Moreover, in March 1991 official defence counsel for various

accused were appointed.

14. The Vienna Regional Court conducted the trial every day from

8 until 18 April 1991 when it was adjourned sine die. In July 1991

copies of the files were produced for the various official defence

counsel, and subsequently the file was transmitted to the Public

Prosecutor's Office for further action. The file was returned on

20 August 1991.

15. On 30 August 1991 the dates for the further trial against the

accused were fixed. The trial was conducted from 15 until

18 October 1991.

16. On 18 October 1991 the trial was closed, and the applicant was

convicted of fraud and sentenced to sixteen months' imprisonment.

17. The applicant lodged a plea of nullity (Nichtigkeitsbeschwerde)

and an appeal against the Regional Court's judgment. The written

version of the judgment, which comprised altogether 182 pages, was

served upon the applicant's counsel on 18 March 1992.

18. On 22 April 1992 the files were transmitted to the Public

Prosecutor's Office for comments on the applicant's and other

co-accused's appeals. The files were returned six days later. The

Regional Court's report transmitting the appeals with the files was

received by the Supreme Court on 6 May 1992.

19. On 21 October 1992 the Austrian Supreme Court (Oberster Gerichts-

hof) rejected the applicant's plea of nullity as having been lodged out

of time, and decided that the files be transferred to the Vienna Court

of Appeal for a decision on the applicant's appeal regarding the

sentence imposed upon him. As regards the applicant's plea of nullity,

the Supreme Court found that the applicant had failed to file the

reasons for his plea of nullity within the general time-limit of

two weeks. The Supreme Court noted that the indication in the Regional

Court's judgment according to which there was a time-limit of four

weeks to file the reasons for the plea of nullity had been erroneous.

20. At that stage of the proceedings, the case files comprised twelve

volumes of more than 5,500 pages and two boxes with annexes.

21. On 6 November 1992 the applicant lodged a request for the

reinstatement of the proceedings regarding his plea of nullity.

22. In the course of the present proceedings before the Commission,

the files concerning the criminal proceedings against the applicant and

others were transmitted to the Federal Ministry of Justice between

18 November and 17 December 1992.

23. On 25 August 1993 the Supreme Court granted the applicant's

request for the reinstatement, but dismissed his plea of nullity. The

Supreme Court also decided that the files be transferred to the Vienna

Court of Appeal for a decision on the applicant's appeal.

24. On 16 November 1993 the Vienna Court of Appeal dismissed the

applicant's appeal.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

25. 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

26. 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

27. 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 ..."

28. 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.

29. The period to be taken into consideration started on

21 August 1987 when the criminal investigations were instituted against

the applicant. The proceedings terminated on 16 November 1993 when the

Vienna Court of Appeal dismissed the applicant's appeal. The

proceedings thus lasted almost six years and three months.

30. 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).

31. The Commission finds that the proceedings were of some complexity

as they covered prosecution of several accused in numerous cases of

fraud involving a considerable number of witnesses.

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

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

Commission finds that there were important periods of delay.

34. There is a first gap between the conclusion of the preliminary

investigations on 2 September 1988 and the preferral of the indictment

by the Public Prosecutor's Office on 21 April 1989. Moreover, due to

shortcomings in the preparation of the bills of indictment, the proper

service of these documents was delayed for more than five months, and

it took until May 1990 to commit the applicant for trial. The ensuing

period of ten months in order to prepare the trial has not been

sufficiently explained by the Government.

35. In these circumstances, the Commission cannot regard as

"reasonable" a lapse of time of more than six years for the conclusion

of the criminal proceedings against the applicant.

CONCLUSION

36. 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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W.S. v. AUSTRIA

W.S. v. AUSTRIA

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