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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 20603/92

F. G.

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 - 13) . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 14 - 25) . . . . . . . . . . . . . . . . 3

A. Complaint declared admissible

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

B. Point at issue

(para. 15) . . . . . . . . . . . . . . . . 3

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

the Convention

(paras. 16 - 24) . . . . . . . . . . . . . 3

CONCLUSION

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

APPENDIX : DECISION ON THE ADMISSIBILITY OF THE

APPLICATION. . . . . . . . . . . . . . . . . 5

I. INTRODUCTION

1. The present Report concerns Application No. 20603/92 by F. G.

against Austria, introduced on 13 July 1992 and registered on

9 September 1992.

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

at Tribuswinkel. He is a commercial clerk 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 11 January 1988. 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. The Vienna Public Prosecutor's Office (Staatsanwaltschaft)

preferred the indictment against some of the suspects in April 1989.

The trial against these suspect was conducted before the Vienna

Regional Court in two sets of hearings in April and October 1991.

Judgment was pronounced on 18 October 1991. The written version was

served upon these accused in March 1992.

10. Meanwhile, on 5 April 1990 the Vienna Public Prosecutor's Office

had preferred the indictment against the applicant and five co-accused.

Proceedings against a further accused were later joined. They were

charged with having professionally committed fraud in that they

pretended to offer and supply accommodation and thereby received

payments from interested clients. The indictment referred to more than

fifty cases and a total damage caused by the offences which amounted

to AS 3,000,000 and listed more than sixty witnesses to be heard at the

trial.

11. Moreover, the applicant's co-accused had lodged an appeal with

the Vienna Court of Appeal (Oberlandesgericht) against the indictment,

which had been dismissed on 12 September 1990.

12. On 6 July 1992 the Vienna Regional Court started the trial

against the applicant and six co-accused.

13. On 16 July 1992 the Vienna Regional Court acquitted the applicant

of the charges against him. This acquittal became final the very day.

The written version of the judgment was served on 5 January 1993.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

14. 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

15. 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

16. 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 ..."

17. 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.

18. The period to be taken into consideration started on 11 January

1988, when preliminary investigations were instituted against the

applicant, and terminated on 16 July 1992, when he was acquitted. They

thus lasted four years and six months.

19. 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).

20. 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. However, it has

to be borne in mind that the preliminary investigations against the

applicant commenced at a time when investigations into other aspects

of the overall fraud case had already lasted more than eight months.

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

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

Commission finds that there were important periods of delay.

23. The respondent Government have not sufficiently explained why,

even though the preliminary investigations were concluded on

2 September 1988 and an indictment was preferred against some of the

suspects in April 1989, it took another year, namely until

5 April 1990, to prefer the indictment against the applicant and

further suspects. Moreover, the trial only took place in July 1992

after a delay of one year and ten months, counted from the Court of

Appeal's decision dismissing the appeal against indictment lodged by

one of the co-accused. The Commission, having regard to the

Government's arguments as to the workload of the Presiding Judge and

the restraints on the availability of court rooms, recalls that

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

Contracting States the obligation to organise their judicial systems

in such a way that their courts can meet each of its requirements

(cf. Eur. Court H.R., Pizzetti judgment of 26 February 1993, Series A

no. 257-C, p. 37, para. 18).

24. In these circumstances, the Commission cannot regard as

"reasonable" a lapse of time of more than four and a half years for the

conclusion of the criminal proceedings against the applicant, by an

acquittal at first instance.

CONCLUSION

25. 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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F.G. v. Austria

F.G. v. Austria

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