Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

APPLICATION No. 16704/90

Stefan TOTH

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 8 January 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 19). . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2 - 4) . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5 - 14). . . . . . . . . . . . . . . . . . 1

a) The applicant's previous

Application No. 11894/85

(paras. 5 - 7). . . . . . . . . . . . . . . . 1

b) The present application

(paras. 8 - 14) . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 15 - 19) . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 20 - 80) . . . . . . . . . . . . . . . . . . . . 4

A. Preliminary investigations

(paras. 20 - 35) . . . . . . . . . . . . . . . . . 4

B. Trial proceedings before

the Salzburg Regional Court

(paras. 36 - 65) . . . . . . . . . . . . . . . . . 5

C. Appeal proceedings

(paras. 66 - 80) . . . . . . . . . . . . . . . . . 8

III. OPINION OF THE COMMISSION

(paras. 81 - 97) . . . . . . . . . . . . . . . . . . . .10

A. Complaint declared admissible

(para. 81) . . . . . . . . . . . . . . . . . . . .10

B. Point at issue

(para. 82) . . . . . . . . . . . . . . . . . . . .10

C. Compliance with Article 6

para. 1 of the Convention

(paras. 83 - 96) . . . . . . . . . . . . . . . . .10

1. Period to be considered

(paras. 85 - 87). . . . . . . . . . . . . . .10

2. Relevant criteria

(paras. 88 - 89). . . . . . . . . . . . . . .10

3. Complexity of the case

(paras. 90 - 91). . . . . . . . . . . . . . .11

4. Applicant's conduct

(paras. 92 - 93). . . . . . . . . . . . . . .11

5. Conduct of the authorities

(paras. 94 - 96). . . . . . . . . . . . . . .11

D. Conclusion

(para. 97) . . . . . . . . . . . . . . . . . . . .12

APPENDIX : Decision on the admissibility of the application . . . .13

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, an Austrian citizen born in 1953, is a tap room

assistant residing in Graz. Before the Commission he is represented

by Dr. K. Hermann, a lawyer practising in Graz.

3. The application is directed against Austria whose Government are

represented by their Agent, Ambassador H. Türk, Head of the

International Law Department at the Federal Ministry for Foreign

Affairs.

4. The application concerns the applicant's complaint under

Article 6 para. 1 of the Convention that his case was not heard within

a reasonable time.

B. The proceedings

a) The applicant's previous Application No. 11894/85

5. On 12 October 1985 the applicant introduced Application

No. 11894/85 in which he complained inter alia under

Article 5 paras. 3 and 4 of the Convention of his detention on remand,

and under Article 6 para. 1 of the Convention of the length of criminal

proceedings.

6. On 8 May 1989 the Commission declared admissible the applicant's

complaints under Article 5 paras. 3 and 4 of the Convention. The

remainder of the application was declared inadmissible, the Commission

finding that the length of the proceedings had not then exceeded the

"reasonable time" within the meaning of Article 6 para. 1 of the

Convention.

7. On 3 July 1990 the Commission adopted its Article 31 Report on

the case, finding violations of Article 5 paras. 3 and 4 of the

Convention. In its judgment of 12 December 1991 the Court also found

violations of Article 5 paras. 3 and 4 of the Convention (see Eur.

Court H.R., Series A no. 224).

b) The present application

8. After the Commission's decision on the admissibility of

Application No. 11894/85, the criminal proceedings in which the

applicant was involved continued. The present application concerns the

entire length of these proceedings. It was introduced on 10 April 1990

and registered on 11 June 1990.

9. On 10 October 1990 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

10. The Governments observations were received by letter dated

11 January 1991 and the applicant's observations were dated

18 April 1991.

11. On 9 April 1991 the Commission referred the application to the

First Chamber.

12. On 9 December 1991 the Commission (First Chamber) declared the

application admissible.

13. The Government submitted observations on the merits on

26 February 1992.

14. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, also placed itself

at the disposal of the parties with a view to securing a friendly

settlement. In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be

effected.

C. The present report

15. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

Mr. M. PELLONPÄÄ

16. The text of this Report was adopted on 8 January 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

17. The purpose of the Report, pursuant to Article 31 of the

Convention is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

18. The Commission's decision on the admissibility of the application

is attached hereto as an Appendix.

19. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Preliminary investigations

20. On 1 June 1984 the Salzburg Regional Court (Landesgericht) issued

a warrant of arrest (Haftbefehl) against the applicant, who was then

of unknown abode, on suspicion of having committed, inter alia, the

offence of aggravated fraud (schwerer Betrug), together with a certain

J.M. On 24 August 1984, the Salzburg Regional Court issued an

international search warrant (Steckbrief) against the applicant.

21. From 19 to 20 July 1984 the applicant was detained in Zurich in

Switzerland for questioning by the police.

22. On 11 January 1985 at 23h00 the applicant was arrested at Graz

airport. On 12 January 1985 he was heard by the investigating judge

at the Graz Regional Court. On 17 January 1985 the applicant was

transferred to Vienna and on 22 January 1985 to Salzburg.

23. On 23 January 1985 a judge at the Salzburg Regional Court heard

the applicant. On the same day, the Court ordered his detention on

remand, inter alia, on suspicion of attempted and completed fraud

according to Section 147 para. 3 of the Criminal Code, and on the

ground of a danger of absconding and of repetition.

24. The applicant was heard by the investigating judge on 25, 28, 29,

30 and 31 January and 1 February 1985. On 7 February 1985 the Swiss

authorities announced their intention to prosecute the applicant.

25. On 15 February 1985 the applicant filed an application for his

release from detention which the Review Chamber (Ratskammer) at the

Salzburg Regional Court refused on 27 February 1985.

26. Meanwhile, on 19 February 1985, investigations were instituted

with regard to offences allegedly committed by the applicant in

Switzerland. On 1 March 1985 the case-file was sent back from the

Review Chamber to the investigating judge who was, however, on holiday

until 15 April 1985. On 30 April 1985 the investigating judge heard

the applicant with regard to the co-accused J.M. From 26 April to

1 May 1985 the applicant served a prison sentence relating to a

different offence. On 15 May and 24 June 1985 the investigating judge

requested information from two German banks.

27. On 19 June 1985, the Linz Court of Appeal (Oberlandesgericht)

decided to allow an extension of the applicant's detention on remand

for up to eight months as from 23 January 1985. The applicant filed

an appeal against this decision which the Supreme Court (Oberster

Gerichtshof) rejected as being inadmissible on 22 August 1985. The

case-file was returned to the investigating judge on 11 September 1985.

28. On 12 September 1985 the applicant again applied for his release.

29. On 18 September 1985 the Linz Court of Appeal decided that the

applicant's detention on remand could be prolonged for up to 11 months.

30. On 24 September 1985 the Regional Court decided that the

preliminary investigations instituted against the applicant should be

extended also to the offence of arson (Brandstiftung) allegedly

committed in Switzerland. The applicant's appeal (Beschwerde) against

this decision was rejected on 2 October 1985 by the Review Chamber

which found, inter alia, that the applicant had failed to motivate his

appeal.

31. Upon termination of the preliminary investigations the case-file

was sent to the Public Prosecutor's Office (Staatsanwaltschaft) on

2 October 1985. The latter applied on 31 October 1985 for the

continuation of the preliminary investigations in order to complete the

case-file. These applications were granted on 7, 15 and

19 November 1985. The case-file was then transmitted to the Linz Court

of Appeal on 3 December 1985 for decision on the prolongation of the

applicant's detention.

32. On 11 December 1985, the Linz Court of Appeal extended the

applicant's detention on remand for up to fifteen months.

33. The applicant applied to be released from detention on remand

whereupon the case-file was transmitted to the Review Chamber at the

Salzburg Regional Court. On 2 January 1986 the Review Chamber

dismissed the request. The applicant's further appeal against this

decision was dismissed on 22 January 1986 by the Linz Court of Appeal.

34. Also on 2 January 1986 the applicant was heard by an

investigating judge and confronted with a certain S.R. A final

interrogation of the applicant took place on 22 January 1986.

35. A petition for release, which the applicant addressed to the

Constitutional Court (Verfassungsgerichtshof), was dismissed by that

Court as inadmissible in a decision issued on 28 February 1986.

B. Trial proceedings before the Salzburg Regional Court

36. On 26 February 1986 the preliminary investigations were closed

and on 12 March 1986 the Salzburg Public Prosecutor's Office indicted

the applicant inter alia on the grounds of partly attempted and partly

completed aggravated professional fraud according to Section 147

para. 3 of the Criminal Code.

37. According to the bill of indictment, the applicant had drawn

cheques on various banks in Germany and Austria and given them to Ch.B.

and J.M. to cash them in other banks in these countries; in the Federal

Republic of Germany the applicant was being sought for 19 instances of

fraud. It was stated that the damages amounted to 950,000 AS in

respect of completed fraud and 1,250,000 AS in respect of attempted

fraud and that investigations would be pursued in respect of arson and

other instances of fraud.

38. On 11 April 1986 the applicant's objection against the bill of

indictment was dismissed by the Linz Court of Appeal which committed

the applicant for trial.

39. Also on 11 April 1986 the Court of Appeal extended the

applicant's detention on remand for up to seventeen months in view of

the volume and difficulties of the investigations.

40. On 30 April 1986 the case-file was transferred to the trial judge

who on 23 May 1986 ordered the hearing to take place on 11 June 1986.

On 5 June 1986 the applicant's lawyer stated that he would no longer

represent the applicant after 11 June 1986.

41. The applicant's trial commenced, and a first hearing took place

on 11 June 1986. Thereafter, the hearing was adjourned. Also on

11 June 1986, an official defence counsel was appointed.

42. On 16 June 1986 the applicant requested his release from

detention, claiming that he had permanent residence in Austria and

confirmation of secure employment. This request was dismissed on

25 June 1986 by the Salzburg Regional Court and upon appeal on

9 July 1986 by the Linz Court of Appeal.

43. On 24 July 1986 the Salzburg Regional Court contacted the Vienna

Regional Court as to the date of release of Ch.B. On 29 July 1986 a

German court was requested to transmit a decision which arrived on

18 August 1986.

44. Meanwhile, on 25 July 1986 the applicant filed a further request

to be released from detention which was dismissed by the Salzburg

Regional Court on 30 July 1986 and, upon the applicant's appeal, by the

Linz Court of Appeal on 20 August 1986.

45. On 22 September 1986 letters rogatory (Rechtshilfeersuchen) were

transmitted to the Swiss Federal Office for the Police and to a German

court in respect of the witness D. The file was then sent to a

forensic expert who prepared an expert opinion in respect of J.M. on

8 October 1986.

46. The Salzburg Regional Court again decided on 12 November 1986 not

to release the applicant. On 26 November 1986 the Linz Court of Appeal

rejected the applicant's appeal.

47. Meanwhile, on 12 November 1986 the applicant unsuccessfully

attempted to discharge his officially appointed lawyer. On

17 November 1986 the applicant complained that no date had been fixed

for a hearing. This complaint was to no avail, as the authorities were

awaiting evidence from Germany. On 3 December 1986 a German court

transmitted further evidence to the Austrian authorities as to the

witness D.

48. Following the applicant's complaints about his officially

appointed lawyer, the Bar Association stated on 16 December 1986 that

they saw no reason to appoint another lawyer.

49. On 12 and 16 December 1986 the trial judge requested the Dornbirn

and Bregenz Constabularies to provide the addresses of Ch.B. and S.R.

A similar request in respect of Ch.B. was filed with the Salzburg

Federal Police Directorate on 22 January 1987.

50. On 31 December 1986 the applicant filed a request to be released

from detention on remand. This was refused by the Review Chamber at

the Salzburg Regional Court on 21 January 1987.

51. On 28 January 1987 the Review Chamber refused the applicant's

request for release from detention. Upon the applicant's appeal the

Linz Court of Appeal decided on 18 February 1987 to release the

applicant on conditions, inter alia, that he reported every two days

to the police. The applicant was released on the same day. J.M. was

released from detention on 12 March 1987.

52. On 2 July 1987 the investigating authorities obtained further

information concerning the applicant.

53. On 9 July 1987 the Salzburg Public Prosecutor's Office indicted

the applicant in respect of further instances of fraud. The bill of

indictment was sent to the applicant on 17 July 1987. The applicant's

appeal against the indictment of 9 July 1987 was dismissed by the Linz

Court of Appeal on 30 September 1987. On 27 October 1987 these

proceedings were joined to the main proceedings.

54. Meanwhile, on 23 July 1987 the President of the Salzburg Regional

Court decided that the applicant now had to report weekly to the

police. The applicant's appeal against this decision was declared

inadmissible by the Linz Court of Appeal on 9 September 1987.

Nevertheless the Court found that the decision of 23 July 1987 had not

been passed by the competent judicial authority for which reason it

quashed the decision while ordering a bench of three judges to take the

decision. On 30 September 1987 a bench of three judges at the Salzburg

Regional Court again reached the same conclusion as the President in

his decision of 23 July 1987. The applicant's appeal was declared

inadmissible on 4 November 1987 by the Linz Court of Appeal.

55. On 2 November 1987 the Salzburg Public Prosecutor's Office

requested the trial to be fixed as soon as possible.

56. On 12 February 1988 the applicant requested photocopies of

certain documents.

57. On 22 February 1988 further trial hearings before the Salzburg

Regional Court were fixed for 25 and 26 May 1988. The photocopies were

sent to the applicant.

58. On 24 February 1988 the Court was informed that the summons to

the trial of the witnesses Ch.B. and S.R. could not be served. On

10 March 1988 the Court asked the Feldkirch authorities for the address

of Ch.B. On 14 March 1988 the Court was informed that Ch.B.'s address

was unknown.

59. On 15 March 1988 the further witness M. D. informed the Salzburg

Regional Court that she would be abroad and could therefore not be

present at the trial hearing.

60. On 17 March 1988 the Bregenz authorities informed the Salzburg

Regional Court of the address of S.R. and that the witnesses Ch.B. and

G.D. were detained on remand in the Federal Republic of Germany.

61. Upon the Salzburg Regional Court's further inquiry of

18 March 1988 information was received by telephone on 18 April 1988

that Ch.B. was now detained at Feldkirch prison. The Salzburg Regional

Court then requested Ch.B.'s presence (Vorführung) at the trial

hearing.

62. On 18 May 1988 the Salzburg Regional Court filed a letter

rogatory with the Aschaffenburg District Court (Amtsgericht) in the

Federal Republic of Germany as to whether the witness G.D. would agree

to come to Salzburg for questioning. The District Court replied that

G.D. would not agree.

63. The hearing took place on 25 and 26 May 1988, the minutes of the

hearing eventually comprising 87 pages.

64. On 26 May 1988 the Salzburg Regional Court convicted the

applicant of aggravated fraud and of forgery and sentenced him to four

and a half years' imprisonment. The periods of time which the

applicant had spent in detention, inter alia from 19 to 20 July 1984,

were deducted from the sentence. J.M. was conditionally sentenced to

three years' imprisonment.

65. The reasons of the judgment of 26 May 1988, numbering 69 pages,

were served on the applicant on 1 June 1989.

C. Appeal proceedings

66. Following the judgment the applicant announced that he would file

a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung).

The Public Prosecutor's Office announced that it would file an appeal.

67. On 17 June 1988 the applicant announced his representation by his

present lawyer.

68. On 18 July 1988 the applicant requested the transmission of the

case-file to the Graz District Court (Bezirksgericht) for consultation.

He also requested a copy of the minutes of the hearing to be sent to

his lawyer. The applicant repeated this request on 16 September 1988.

69. On 19 September 1988 the case-file was transmitted to the Graz

District Court. It was returned to the Salzburg Regional Court on

7 October 1988.

70. On 14 March 1989 the applicant filed a request temporarily to

suspend the obligation to report weekly to the police in order to

participate in the hearing before the Commission in Strasbourg in

Application No. 11894/85 on 8 May 1989. Following a first examination

of the request by the Public Prosecutor's Office on 23 March 1989, the

applicant's lawyer was requested on 30 March 1989 to submit a copy of

the Commission's summons for the hearing, and to explain whether the

applicant's personal appearance before the Commission would be

necessary.

71. The applicant's lawyer submitted the necessary documents on

3 April 1989.

72. On 5 April 1989 the case-file was transmitted to the Federal

Ministry of Justice for the preparation of the hearing. It was returned

to the Salzburg Regional Court on 14 April 1989.

73. On 21 April 1989 the Salzburg Regional Court temporarily

suspended the applicant's obligation to report to the police in order

to enable him to participate in the hearing before the Commission in

Strasbourg.

74. On 15 June 1989 the applicant filed a plea of nullity and an

appeal to the Austrian Supreme Court (Oberster Gerichtshof).

75. On 4 July 1989 a bank acting as private party to the proceedings

filed a statement on the applicant's appeal and plea of nullity. On

5 July 1989 the various remedies were brought before the Supreme Court.

76. The Supreme Court dismissed the applicant's plea of nullity on

14 September 1989 and transferred the appeal for decision to the Linz

Court of Appeal.

77. On 3 October 1989 the applicant requested termination of the

obligation to report to the police. On 9 October 1989 the Public

Prosecutor's Office opposed this request in view of the prison sentence

imposed on the applicant. On 18 October 1989 the Salzburg Regional

Court dismissed the applicant's request.

78. On 23 October 1989 the Linz Court of Appeal, after conducting an

appeal hearing, partly upheld the applicant's appeal. It considered

mitigating circumstances and also "the long period of time since the

offence" and the applicant's good conduct since his release and reduced

the sentence to four years. The reasons of the appeal decision,

numbering five pages, were served on the applicant on 22 November 1989.

79. On 17 November 1989 the Salzburg Regional Court ordered the

applicant within a month to commence serving the remaining prison

sentence amounting to one year, ten months, twenty seven days and

seventeen hours.

80. Upon the applicant's further request, the Regional Court on

16 May 1990 noting that the applicant had already served half the

sentence suspended the execution of the remainder for a probation

period of three years.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that his case was not heard within a reasonable time.

B. Point at issue

82. 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

83. The applicant complains that the criminal proceedings against him

were not terminated within a reasonable time. He relies on Article 6

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

84. The Government submit that the proceedings did not attain an

unreasonable length.

1. Period to be considered

85. The Commission considers that the period to be examined under

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

applicant's arrest in Austria on 11 January 1985.

86. The period ended on 22 November 1989 when the written reasons of

the decision of the Linz Court of Appeal of 23 October 1989 were served

on the applicant.

87. Accordingly, the period to be examined under Article 6 para. 1

(Art. 6-1) of the Convention lasted four years, ten months and eleven

days.

2. Relevant criteria

88. 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., Vernillo judgment of 20 February 1991, Series A

no. 198, p. 17 para. 28).

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

is due to the complexity of the case and the applicant's conduct.

3. Complexity of the case

90. The Commission notes that the authorities had to investigate

charges brought against the applicant and another person concerning

numerous instances of fraud committed in Austria and abroad. Thus, the

case concerned certain complex facts.

91. The Commission nevertheless considers that this complexity cannot

under Article 6 para. 1 (Art. 6-1) in itself justify the period at

issue. It finds a confirmation herefor in the Court's judgment in the

Toth case, concerning the applicant's previous complaint under

Article 5 para. 3 of the Convention about the length of his detention

on remand. Therein the Court found that "the length of the proceedings

... would in fact seem essentially not to be attributable ... to the

complexity of the case ... Although the offences of which Mr. Toth was

accused were numerous and concerned several countries, they were

relatively commonplace and repetitive" (see Eur. Court H.R., Toth

judgment of 12 December 1991, Series A no. 224, p. 21, para. 77).

4. Applicant's conduct

92. As regards the applicant's conduct, the Commission recalls that

Article 6 (Art. 6) of the Convention does not require a defendant in

criminal proceedings actively to cooperate with the prosecuting and

judicial authorities. Neither can any reproach be levelled against him

for having made full use of the remedies available under the domestic

law. Nevertheless, such conduct constitutes an objective fact, not

capable of being attributed to the respondent Government, which is to

be taken into account when determining whether or not the proceedings

lasted longer than the reasonable time referred to in Article 6 para. 1

(Art. 6-1) of the convention (see Eur. Court H.R., Eckle judgment of

15 July 1982, Series A no. 51, p. 36, para. 82).

93. In the present case the many appeals and requests filed by the

applicant contributed to some extent to the length of the proceedings,

but they cannot in themselves justify this delay.

5. Conduct of the authorities

94. As regards the conduct of the authorities, the Commission notes

at the outset that the authorities were frequently confronted with

appeals and requests filed by the applicant. These would have

necessitated frequent transmission of the case-file. Nevertheless, it

has not been shown that the possibility of preparing copies of the

case-file was considered in order to avoid delays in the conduct of the

proceedings (see Eur Court H.R., König judgment of 28 June 1978,

Series A no. 27, p. 36, para. 104; Toth judgment, loc. cit. para. 77).

95. As regards the various stages of the proceedings, the Commission

considers that the circumstances of the present case call for an

overall assessment (see Eur. Court H.R., Obermeier judgment of

28 June 1990, Series A no. 179, p. 23, para. 72; Ficara judgment of

19 February 1991, Series A no. 196-A, p. 9, para. 17). In particular

it suffices to note that between 1987 and 1989 there were a number of

periods of inactivity.

96. The Commission has already found above (paras. 91, 93) that

the complexity of the case and the conduct of the applicant cannot in

themselves justify the length of the criminal proceedings. It

considers that, as a result of the delays in the conduct of the

proceedings, for which the Austrian authorities must be held

responsible, 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

97. The Commission concludes, by a unanimous vote, 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) (J.A. FROWEIN)

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TOTH v. AUSTRIA

TOTH v. AUSTRIA

LEXI