Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

APPLICATION No. 15883/89

Friedrich Wilhelm KREMZOW

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 8 January 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

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

II. ESTABLISHMENT OF THE FACTS

(paras. 7 - 35) . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 36 - 49). . . . . . . . . . . . . . . . . . . . . . . 5

A. Complaint declared admissible

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

B. Point at issue

(para. 37) . . . . . . . . . . . . . . . . . . . . . . . 5

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

(paras. 38 - 48) . . . . . . . . . . . . . . . . . . . . 5

D. Conclusion

(para. 49) . . . . . . . . . . . . . . . . . . . . . . . 6

APPENDIX : Decision on the admissibility of the application . . . . 7

I. INTRODUCTION

1. The present Report concerns Application No. 15883/89 by

Friedrich Wilhelm Kremzow against Austria, introduced on

22 November 1989 and registered on 11 December 1989.

2. The applicant, born in 1938, is an Austrian national. At present

he is serving a life sentence for murder at the prison of

Vienna-Mittersteig. In the present case the applicant has been

represented by Mr. W.L. Weh, a lawyer practising in Bregenz, since

24 February 1989. On 31 May 1992 Mr. H. Mühlgassner, a lawyer

practising in Vienna, also presented himself as applicant's counsel.

The Austrian Government are represented by their Agent,

Ambassador H. Türk, Head of the International Law Department at the

Federal Ministry of Foreign Affairs.

3. The application was communicated to the Government on

10 October 1990. On 2 September 1991 the application was referred to

a Chamber. Following an exchange of memorials, the applicant's

complaint under Article 6 para. 1 of the Convention relating to the

length of criminal proceedings was declared admissible on

10 September 1991. The decision on admissibility is appended to this

Report.

The applicant submitted further observations on 31 May 1992.

Furthermore, with a view to securing a friendly settlement of the case,

consultations took place with the parties between 13 September 1991 and

22 October 1992.

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 (Second Chamber), after

deliberating, adopted this Report in accordance with Article 31 para. 1

of the Convention, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

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

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

6. 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

7. In January 1983 the applicant reported to the Tax Office

(Finanzamt) for the 1st District of Vienna about tax evasion committed

in connection with his professional activities.

8. On 17 February 1983 the Tax Office instituted proceedings under

the Code of Financial Offences (Finanzstrafgesetz) against the

applicant on the suspicion of having committed tax evasion, namely

failed to submit tax declarations for the years 1977-81.

9. In March and June 1983 the applicant was heard by the Tax Office

on the charges against him.

10. On 3 October 1983 the tax assessments concerning the period from

1978 until 1982 were issued against the applicant. The applicant's

appeals in the tax proceedings remained unsuccessful.

11. On 9 March 1984 the Vienna Regional Directorate of Finance

(Finanzlandesdirektion), referring to the amount of taxes fixed in the

above assessments, ordered the Tax Office to report the case without

delay to the Public Prosecutor's Office (Staatsanwaltschaft). The Tax

Office reported the case to the Vienna Public Prosecutor's Office in

April 1984.

12. On 6 September 1985 the Vienna Public Prosecutor's Office

requested the Investigating Judge at the Vienna Regional Court

(Landesgericht) to carry out various preliminary investigations. These

investigations were terminated in November 1986.

13. Meanwhile, on 21 July 1986 the Vienna Regional Court had

dismissed the applicant's request to discontinue the proceedings

against him in view of a sentence to life imprisonment imposed on

18 December 1984.

14. On 5 December 1986 the Vienna Public Prosecutor's Office

preferred the indictment against the applicant, charging him under

S. 33 of the Code of Financial Offences with tax evasion concerning a

total amount of AS 678,143.

15. On 26 January 1987 the Vienna Regional Court, sitting as court

with lay assessors (Schöffengericht), fixed 4 March 1987 as date for

the trial.

16. On 18 February 1987 official defence counsel was appointed for

the applicant. In the subsequent proceedings the applicant lodged

several appeals against the appointment of defence counsel on the

ground that he wished to defend himself in person. These appeals were

on the whole unsuccessful.

17. At the trial on 4 March 1987 the Regional Court decided in

particular to take psychiatric expert evidence on the applicant's

criminal responsibility. The trial was postponed sine die.

18. On 16 October 1987 the Regional Court appointed the psychiatric

expert S., one of three experts proposed by the applicant, and

instructed him to deliver his opinion within three months. The

applicant's appeal against this decision and a hierarchical complaint

were to no avail.

19. On 30 June 1989, following an extension of the time-limit and

several reminders, the expert S. delivered his opinion according to

which the applicant did not suffer from any mental disorder excluding

his criminal responsibility.

20. On 10 October 1989 the Federal Ministry of Justice (Bundes-

ministerium der Justiz) dismissed the applicant's request to annul the

proceedings.

21. Between 23 January and 19 February 1990 the files were sent to

the Mittersteig Prison for consultation by the applicant.

22. On 4 July 1990 the Regional Court held a further hearing at which

the trial was postponed sine die in order to appoint another defence

counsel for the applicant. Previous counsel had been called as witness

for the defence.

23. On 7 December 1990 the Vienna Court of Appeal, upon the

applicant's request, instructed the Regional Court to fix, within six

weeks, a date for the trial.

24. On 9 November 1990 the applicant filed an official liability

action with the Vienna Regional Court concerning the delay in the

proceedings; these compensation proceedings are still pending.

25. From 11 December 1990 until 3 January 1991 the files were

forwarded to the Federal Ministry of Justice in the context of the

present proceedings before the Commission.

26. The Regional Court held a further hearing on 3 April 1991.

A fine was imposed upon the applicant for contempt of court.

27. On 30 August 1991 the Vienna Court of Appeal, upon the

applicant's request, instructed the Regional Court to decide, within

two weeks, upon his request of May 1991 to discontinue the proceedings

to the extent that prosecution had become statute-barred, and to fix,

within four weeks, a date for trial.

28. On 16 September 1991 the Vienna Regional Court dismissed the

applicant's request to discontinue part of the proceedings.

29. On 2 October 1991 the Attorney General, upon the applicant's

request, lodged a plea of nullity for the preservation of the law

(Nichtigkeitsbeschwerde zur Wahrung des Gesetzes). On 5 December 1991

the Supreme Court (Oberster Gerichtshof), following a hearing on the

plea of nullity, quashed inter alia the imposition of a fine for

contempt of court. The request of the applicant's counsel at the

hearing to discontinue the proceedings was rejected.

30. On 1 April 1992 the Vienna Regional Court, upon request of the

Vienna Public Prosecutor's Office, decided that, having regard to the

amount of evaded tax and a change of the Supreme Court's jurisprudence,

it was no longer competent to deal with the applicant's case. The

matter was transferred to the Tax Office of the Vienna 1st District.

31. The applicant and the Tax Office lodged an appeal against this

decision with the Vienna Court of Appeal.

32. On 13 May 1992 the Tax Office rejected the applicant's request

to discontinue the proceedings. The applicant appealed on 19 May 1992.

33. On 29 June 1992, in the proceedings concerning the question of

competence, the Linz Court of Appeal allowed the applicant's appeal and

sent the matter back to the Regional Court for decision upon the

applicant's submission that prosecution had become time-barred.

34. The Vienna Public Prosecutor's Office then withdrew some of the

charges against the applicant. The Regional Court again decided

on 29 July 1992 that it was no longer competent to deal with the case.

The applicant appealed on 17 August 1992.

35. The proceedings are still pending.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that his case was not heard within a reasonable time.

B. Point at issue

37. The only point at issue is whether the length of the criminal

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

38. 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 ..."

39. The applicability of Article 6 para. 1 (Art. 6-1) to the criminal

proceedings against the applicant concerning charges of tax evasion

within the meaning of the Austrian Code of Financial Offences is not

in dispute.

40. The Government submit that the starting point for the relevant

period to be considered under Article 6 para. 1 (Art. 6-1) was at the

earliest when the Tax Office reported the applicant's case to the

Vienna Public Prosecutor's Office, namely in April 1984.

41. The Commission notes that on 17 February 1983 the Tax Office for

the 1st District of Vienna formally opened proceedings against the

applicant under the Code of Financial Offences. In these

circumstances, the Commission finds that the relevant period started

on 17 February 1983.

42. The proceedings have not yet been terminated after almost ten

years.

43. 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 its complexity, 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).

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

was due to the applicant's conduct, in particular to his numerous

appeals, complaints and resort to other remedies. There were no delays

to be imputed to the Austrian judicial authorities, all decisions and

measures were taken without undue delay.

45. The Commission notes that the criminal proceedings against the

applicant concern charges of tax evasion, whereby the amounts of tax

due were fixed in tax assessments in October 1983 and confirmed upon

appeal in 1985 and 1987. The determination of the applicant's criminal

responsibility required expert evidence. But, on the whole, the case

was not particularly complex.

46. The applicant's conduct did contribute to the overall length of

the proceedings. However, the Commission considers that he cannot be

held responsible for having taken resort to remedies available to him

under Austrian law, which to a large extent related to complaints about

the delay in the proceedings. In this respect, the Commission also

notes that the applicant himself reported his offences to the competent

tax office, and it does not appear that he obstructed investigations.

47. As regards the conduct of the Austrian authorities, the

Commission finds that the proceedings were not conducted with the

necessary expediency. In particular, it took the Tax Office more than

one year to report the case to the Public Prosecutor's Office. The

Public Prosecutor's Office waited one year and five months before

requesting court investigations. The Vienna Regional Court terminated

these investigations more than one year later in November 1986. Trial

proceedings before the Vienna Regional Court lasted more than five

years until 1 April 1992 when the case was transferred back to the Tax

Office following a change of jurisprudence as regards the question of

competence.

48. In these circumstances, the Commission finds that 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.

D. Conclusion

49. The Commission concludes, unanimously, that there has been a

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

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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KREMZOW v. AUSTRIA

KREMZOW v. AUSTRIA

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