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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 15062/89

Erwin and Robert SCHIANSKY

against

Austria

REPORT OF THE COMMISSION

(adopted on 30 June 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

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

A. The Application. . . . . . . . . . . . . . . . . . . . . 1

B. The Procedure. . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report . . . . . . . . . . . . . . . . . . . 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6 - 9). . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

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

A. Complaint declared admissible

(para. 10) . . . . . . . . . . . . . . . . . . . . . . . 3

B. Point at issue

(para. 11) . . . . . . . . . . . . . . . . . . . . . . . 3

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

(paras. 12 - 18) . . . . . . . . . . . . . . . . . . . . 3

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 4

APPENDIX I: Partial Decision on the admissibility

of the application . . . . . . . . . . . . . . . . 5

APPENDIX II: Final Decision on the admissibility

of the application . . . . . . . . . . . . . . . . 8

I. INTRODUCTION

1. The present Report concerns Application No. 15062/89 by Erwin and

Robert Schiansky against Austria, introduced on 2 May 1989 and

registered on 29 May 1989.

The applicants are Austrian nationals born in 1952 and 1954

respectively and resident in Vienna.

The applicants have been represented before the Commission since

the application was declared admissible by Dr. Martin Prohaska, a

lawyer practicing in Vienna.

The respondent Government are represented by Dr. Helmut Türk,

Ministry of Foreign Affairs, Vienna.

A. The Application

2. On 7 May 1990 the Commission declared inadmissible complaints

relating to the fairness of the proceedings and communicated to the

Government the complaint concerning the length of the proceedings.

Following an exchange of memorials, the complaint relating to the

length of proceedings (Article 6 para. 1 of the Convention) was

declared admissible on 1 April 1992. The decisions on admissibility

are appended to this Report.

B. The Procedure

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 30 June 1993 in accordance with

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

present:

MM. E. BUSUTTIL, Acting President of the First Chamber

F. ERMACORA

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G. B. REFFI

B. CONFORTI

C. The present Report

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

the facts found disclose a violation of the Convention by Austria.

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. 1 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. In their application, in which they rely on Article 6 para. 1 of

the Convention, the applicants complain of the length of the

proceedings before the Austrian courts.

7. On 20 February 1985 equipment was removed from a sound studio

belonging to the applicants. The applicants were questioned by the

police in the course of routine inquiries in February and March 1985

respectively. On 6 June 1986 the applicants were questioned by the

police in connection with criminal offences. They were arrested on

8 June 1986 and kept in detention until 19 August 1986 (according to

the Government) or 20 August 1986 (according to the applicants). On

10 September 1986, on the public prosecutor's request, the Vienna Court

of Appeal (Oberlandesgericht) transferred the case from the Vienna

Regional Court (Landesgericht) to the Korneuburg Regional Court

(Kreisgericht) as 80 judges of the Vienna Regional Court had declared

themselves biased (the second applicant is himself a judge in Vienna).

On 8 May 1987 a request was made for the assistance of a Frankfurt

District Court (Amtsgericht) in hearing a possible witness. The

information requested was received on 3 August 1987. On 16 May 1988

the applicants were acquitted of fraud by the Korneuburg Regional

Court. The applicants' lawyers received the judgment and the

prosecution's plea of nullity on 4 November 1988.

8. On 17 January 1989 the Supreme Court (Oberster Gerichtshof) set

aside this judgment pursuant to the prosecution's plea of nullity and

remitted the case to the Steyr Regional Court (Kreisgericht). The

Supreme Court's judgment was served on the applicants' lawyers on

2 March 1989. On 27 June 1989 the Steyr Regional Court appointed a

lawyer for the first applicant under Article 41 para. 2 of the Code of

Criminal Procedure (Strafprozeßordnung). The applicants' second trial

began before that court on 11 September 1989. On 15 September the

trial was adjourned for further evidence to be taken and for further

investigations to be pursued. On 19 April 1990 the trial resumed at

8.32 a.m., but it was again adjourned at 11.55 a.m. for further

witnesses to be heard.

9. On 27 September 1990 the applicants were acquitted for a second

time. The prosecution appealed.

10. On 12 February 1991 the applicants informed the Commission that

the prosecution had withdrawn its notice of appeal. The acquittal

therefore became final.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

11. The Commission has declared admissible the applicants' complaint

that their case was not heard within a reasonable time.

B. Point at issue

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

complained of 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

13. 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 ..."

14. The proceedings in question concerned alleged insurance frauds.

The purpose of the proceedings was to obtain a decision determining a

"criminal charge" and they accordingly fell within the scope of

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

15. The Commission finds that the proceedings began on 6 June 1986.

Although the applicants had in fact been questioned before that date,

there is no indication that that earlier questioning related to these

proceedings. The proceedings ended when the prosecution announced

their decision to abandon their appeal against the applicants' second

acquittal at first instance. The applicants informed the Commission

of that announcement on 12 February 1991. They were therefore informed

shortly before that date, so that the proceedings lasted approximately

4½ years.

16. 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 Eur. Court H.R., Ferraro judgment of

19 February 1991, Series A no. 197, p. 9, paras. 16 - 17).

17. According to the Government, the length of the period in question

is due to the complexity of the case and the applicants' conduct.

18. As to the complexity of the case, the Commission notes that the

charges against the applicants were, in themselves, straightforward,

and involved nothing more than an allegation that the applicants had

engineered a false theft from their sound studio in order to recoup the

insurance monies. Whilst it is true that some investigations took

place outside the territory of the respondent State, there is no

indication that the proceedings were delayed by this.

19. As to the conduct of the proceedings by the authorities, the

Commission notes that the applicants' first acquittal was set aside by

the Supreme Court with the result that the time taken for the first

round of proceedings did not, in the event, further matters. Moreover,

whilst the proceedings were before the Steyr Regional Court, there were

several periods of inactivity, for example, during the period of almost

eight months between 17 January 1989, when the Supreme Court remitted

the case to Steyr, and the beginning of the second trial on

11 September 1989, the Steyr court only granted legal aid to the first

applicant. Thereafter, the proceedings were adjourned for over seven

months from 15 September 1989 until 19 April 1990, when the trial

continued for just one morning before being adjourned for a further

five months. The Commission considers that no convincing explanation

of these delays has been advanced by the respondent Government. As to

the applicants' conduct, there is no indication that the applicants

were employing delaying tactics in their requests for evidence to be

taken and witnesses to be heard. Indeed, the applicants were

eventually acquitted, such that it appears that their various requests

bore fruit.

20. 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 final decision on criminal

charges within a reasonable time.

21. 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

22. 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 Acting President of the First Chamber

(M.F. BUQUICCHIO) (E. BUSUTTIL)

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SCHIANSKY v. AUSTRIA

SCHIANSKY v. AUSTRIA

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