Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 16060/90

F. G.

against

Austria

REPORT OF THE COMMISSION

(adopted on 11 January 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

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

II. ESTABLISHMENT OF THE FACTS

(paras. 6 - 7). . . . . . . . . . . . . . . . . . . . . . . . . . .2

III. OPINION OF THE COMMISSION

(paras. 8 - 19) . . . . . . . . . . . . . . . . . . . . . . . . . .3

A. Complaint declared admissible

(para. 8) . . . . . . . . . . . . . . . . . . . . . . . . . .3

B. Point at issue

(para. 9) . . . . . . . . . . . . . . . . . . . . . . . . . .3

C. Compliance with Article 6 para. 1 of the Convention

(paras. 10 - 18). . . . . . . . . . . . . . . . . . . . . . .3

CONCLUSION

(para. 19). . . . . . . . . . . . . . . . . . . . . . . . . .4

APPENDIX: DECISION ON THE ADMISSIBILITY . . . . . . . . . . . . .5

I.INTRODUCTION

1. The present Report concerns Application No. 16060/90 against

Austria, introduced on 12 January 1990 and registered on 25 January 1990.

The applicant is an Austrian national born in 1940 and resident in

Pretoria, South Africa.

The applicant is represented before the Commission by

Mr. A. Frischenschlager, lawyer, of Linz.

The Government are represented by their agent, Ambassador

F. Cede, head of the International Law Department of the Federal Ministry

for Foreign Affairs.

2. The application was communicated to the Government by the Plenary

Commission on 7 May 1990. Following an initial exchange of memorials,

and a second exhange of memorials further to additional questions from

the Commission on 10 October 1991, part of the application was declared

inadmissible and the complaint relating to the length of proceedings

(Article 6 para. 1 of the Convention) was declared admissible on

8 February 1993. The decision on admissibility is appended to this

Report. On the same day the Commission transferred the case to the First

Chamber for further consideration. The admissible part of the

application accordingly concerns the applicant's complaint regarding the

length of the criminal proceedings against him.

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 11 January 1994 in accordance with

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

present:

MM. A. WEITZEL, President of the First Chamber

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

G.B. REFFI

N. BRATZA

E. KONSTANTINOV

4. In this Report the Commission states its opinion as to whether the

facts found disclose a violation of the Convention by virtue of the

length of the proceedings against the applicant.

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. The applicant complains of the length of the proceedings before the

Vienna Regional Court (Landesgericht). He refers to the issue of an

arrest warrant against him on 30 July 1987 by the Vienna Regional Court,

and states that he was informed of these proceedings in August 1988 when

he took his passport to the Austrian embassy in Pretoria for it to be

extended. He was not, however, informed of the nature of the allegations

being made against him. On 27 October 1987 the prosecuting authorities

requested preliminary proceedings to be introduced against the applicant.

Various attempts by the applicant's representative to have access to the

case-file were unsuccessful until 20 November 1991, when a decision

permitting access to specified parts of the file was confirmed by the

Review Chamber (Ratskammer) of the Vienna Regional Court. Certain

information concerning the proceedings was disclosed to the applicant in

the course of the proceedings before the Commission.

7. By a letter from the Federal Ministry of Justice, received by the

applicant's representative on 12 March 1991, the applicant was granted a

safe-conduct pass. He was in Austria and informed the Court that he was

available for questioning from 9 to 23 April 1991. On 12 April 1991 he

attended the judge's chambers at the Vienna Regional Court. He was

informed, however, that he could not be questioned because documents

written in Afrikaans which had been received by the Vienna Regional Court

in April 1990 had not been translated.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

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

B. Point at issue

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

complained of has exceeded the "reasonable time" referred to in Article 6

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

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

10. 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 ..."

11. The proceedings in question concern allegations under the Drugs Act

(Suchtgiftgesetz). The purpose of the proceedings is to obtain a

determination of a "criminal charge" and they accordingly fall within the

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

12. The Government submit that the applicant has not been charged

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, so

that the "reasonable time" has not yet begun. The applicant considers

that the latest starting point is 27 October 1987, when the prosecution

requested the introduction of preliminary proceedings against the

applicant. The Commission finds that the proceedings began at the latest

in August 1988, when the applicant was informed that criminal proceedings

were pending against him, and that he was being sought. They have

therefore lasted some five and a half years to date.

13. The Commission recalls that the reasonableness of 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 e.g., Eur. Court H.R., Vernillo judgment of

20 February 1991, Series A no. 198, p. 12, paras. 30 - 38).

14. The Government submit that, even if the time began to run when the

applicant was informed of the proceedings in August 1988, the time has

not been excessive given that he first presented himself to the court on

12 April 1991. The applicant regards the length as excessive. The

Commission finds that insufficient information has been submitted to the

Commission for a view to be formed as to whether the length of the period

in question is due to the complexity of the case.

15. The Commission accepts, in agreement with the Government, that the

applicant's presence in South Africa has made the prosecution of the

offences difficult for the authorities. However, the present case is not

one in which the applicant has fled the jurisdiction after learning of

the existence of proceedings against him. Rather, he was resident,

apparently lawfully, in South Africa when the proceedings were begun, and

since then has made a number of attempts to establish the allegations at

the root of the proceedings. Moreover, he presented himself to the

Austrian courts with a view to being questioned, albeit under a safe-

conduct pass. On that occasion, he was informed that he could not be

questioned because documents receved a year earlier had not been

translated.

16. The Commission considers that although the applicant's presence in

South Africa has contributed to the length of the proceedings, the

respondent Government remain responsible under the Convention for the

length of the continuing criminal proceedings. In particular, the

applicant has made real efforts to establish the issues, and the

proceedings have nevertheless lasted some five and a half years.

17. The Commission reaffirms that it is for Contracting States to

organise their legal systems in such a way that their courts can

guarantee the right of everyone to obtain a decision on criminal charges

within a reasonable time.

18. In the light of the criteria established by case-law and having

regard to all the information in its possession, the Commission finds

that the length of the proceedings complained of exceeded the "reasonable

time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

19. 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) (A. WEITZEL)

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F.G. v. AUSTRIA

F.G. v. AUSTRIA

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