Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

APPLICATION No. 15548/89

Hans NIESENBACHER

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 2 September 1992)

TABLE OF CONTENTS

Page

I. INTRODUCTION

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

II. ESTABLISHMENT OF THE FACTS

(paras. 8 - 54) . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 55 - 75). . . . . . . . . . . . . . . . . . . . . . . 7

A. Complaint declared admissible

(para. 55) . . . . . . . . . . . . . . . . . . . . . . . 7

B. Point at issue

(para. 56) . . . . . . . . . . . . . . . . . . . . . . . 7

C. Alleged violation of Article 6 para. 1

of the Convention

(paras. 57 - 74) . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION

(para. 75). . . . . . . . . . . . . . . . . . . . . . . . . . 9

APPENDIX : Decision on the admissibility of the application 10

I. INTRODUCTION

1. The present Report concerns Application No. 15548/89 by

Hans NIESENBACHER against Austria, introduced on 3 July 1989 and

registered on 28 September 1989.

The applicant, born in 1926, is an Austrian national and resident

in Graz. He is a businessman by profession. Before the Commission he

is represented by Mr. F. Unterasinger, a lawyer practising in Graz.

2. 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

14 December 1989. On 8 January 1991 the application was referred to

the Second Chamber. Following an exchange of memorials, the complaint

relating to the length of criminal proceedings (Article 6 para. 1 of

the Convention) was declared admissible on 14 October 1991. The

decision on admissibility is appended to this Report.

4. The Government have made further submissions on 18 November 1991,

30 March and 8 May 1992; the applicant submitted further observations

on 21 November 1991, 7 January and 7 May 1992.

5. 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

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

6. In this report the Commission states its opinion as to whether

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

7. 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

8. In February 1981 the Graz Regional Court (Landesgericht) first

opened settlement proceedings (Ausgleichsverfahren) concerning the

applicant's assets, then bankruptcy proceedings concerning his firm

producing equipment for brickyards.

9. In March and April 1981, in the context of bankruptcy proceedings

concerning a firm dealing in bricks (VZ), several persons laid

information against the managers of the applicant's firm, MM. B. and

V., for fraud. In July 1981 the trustee in the above-mentioned

bankruptcy proceedings laid information against MM. S. and St. for

fraud and fraudulent conversion. The Graz Regional Court, upon request

of the Graz Public Prosecutor's Office (Staatsanwaltschaft), ordered

various investigation measures in July and August 1981. In particular,

various places were searched, documents seized, and B., S. and St. were

taken into detention on remand (St. was released in September 1981,

S. in December 1981, B. in May 1982). Investigations were extended

against a further suspect. The suspects and various witnesses were

heard.

10. On 8 September 1981, in the context of these investigations, the

Graz Regional Court requested the Graz Federal Police Department

(Bundespolizeidirektion) to inspect a credit account of the applicant

and related documents, and to produce copies thereof. On

15 September 1981 the Regional Court instructed the Police Department

to inspect a bills account concerning the discounting of bills relating

to the applicant and the above-mentioned bankrupt firm, and to produce

copies thereof. On 19 October 1981 the Graz Federal Police Department

submitted its report on the result of its investigations. The Regional

Court continued its investigations.

11. On 27 January 1982 the accountant expert submitted his opinion

concerning questions of the indebtedness of the above-mentioned firm

VZ (more than AS 93 million) and its insolvency.

12. On 8 April 1982 the Graz Regional Court heard the applicant as

a witness. The applicant filed various documents.

13. On 22 April 1982 the Graz Public Prosecutor's Office, having

consulted the files, requested the Graz Regional Court to open

preliminary investigations against the applicant on the suspicion of

having committed fraud in that he had, inter alia, forwarded bills

without relation to real financial transactions, furthermore on the

suspicion of fraudulent conversion as accomplice to the criminal

offences of the suspects B. and V. as well as of negligent bankruptcy

as regards his own firm.

14. On 23 April 1982 the Graz Regional Court, upon request of the

Public Prosecutor's Office, issued search warrants concerning the

applicant's business premises and ordered the seizure of any relevant

accountant documents in the presence of the accountant expert. It also

ordered that the files concerning the bankruptcy of the applicant's and

B.'s firms as well as other files be produced. Moreover, criminal

proceedings were instituted against three further persons.

15. On 27 April 1982 the Graz Federal Police Department reported upon

the search of the applicant's business premises and the documents

seized.

16. Furthermore, between April and September 1982 the Regional Court

repeatedly heard the suspects as well as several witnesses and ordered

a banking institute to produce various documents, in particular those

concerning particular business relations of the applicant, B. and V.

17. On 22 September 1982 further information concerning fraudulent

conversion was laid against the suspects B. and S.

18. On 29 October 1982 the Graz Regional Court received a

supplementary opinion of the accountant expert concerning the financial

situation of the applicant's firm.

19. On 23 November 1982 the files were sent for consultation to a

civil department of the Graz Regional Court where they remained until

10 December 1982.

20. On 19 April 1983 a suspect was heard again. On 26 April 1983 the

files were forwarded to the Graz Public Prosecutor's Office. On

20 May 1983 the files were returned with a request to produce all files

concerning the settlement and bankruptcy proceedings of the firms

managed by B., V., St. and the applicant, to produce files concerning

parallel criminal proceedings against some of the suspects, to produce

further specified documents and information, to hear two further

witnesses and to examine again the suspects on the basis of the

investigation results so far.

21. On 29 July 1983 the applicant was examined as a suspect. He was

informed that preliminary investigations had been instituted against

him. A further suspect and the suspect B. were also heard again.

Other investigations required by the Prosecutor's Office were completed

between 2 September and 3 October 1983. On 4 November 1983 the files

were sent to the Public Prosecutor's Office.

22. On 25 November 1983 the Prosecutor's Office returned the files

and requested again that the files concerning the settlement and

bankruptcy proceedings relating to B., V. and the applicant as well as

the other court files concerning the related criminal proceedings be

produced.

23. Since 15 December 1983 the applicant was assisted by counsel.

24. On 19 December 1983 the Graz Public Prosecutor's Office preferred

the indictment against the applicant and the co-accused B. on charges

of fraud and fraudulent conversion. It also requested that the

criminal proceedings against the two accused as well as other suspects

concerning various criminal offences be separated. On 9 January 1984

the Graz Regional Court decided accordingly, and the bill of indictment

was served upon the accused.

25. On 24 and 25 January 1984 the accused lodged objections to the

indictment.

26. On 9 February 1984 the Graz Court of Appeal (Oberlandes-gericht)

dismissed the objections. The decision was served upon the accused on

16 February, and on 17 February 1984 the files were forwarded to the

Presiding Judge of the Regional Court, sitting in a chamber with two

lay assessors (Schöffengericht), in order to fix a date for trial. The

competent Judge declared himself to be biased, and the case was

assigned to another judge on 22 February 1984. Several persons joined

the proceedings as civil parties (Privatbeteiligte).

27. On 9 July 1984 the applicant asked for further evidence to be

taken.

28. On 7 August 1984 the Public Prosecutor's Office requested the

Regional Court to fix a trial as soon as possible.

29. On 11 October 1984 the Regional Court fixed the period from

5 until 16 November 1984 as dates for the trial.

30. On 23 October 1984 the Public Prosecutor's Office preferred a

supplementary indictment against the applicant on the charge of

negligent bankruptcy, which was joined to the current criminal

proceedings on 29 October 1984.

31. From 5 March until 13 November 1984 the Graz Regional Court held

trial against the applicant and the co-accused B. The Court heard in

particular 23 witnesses and the accountant expert. The verbatim record

comprised 224 pages.

32. On 13 November 1984 the Graz Regional Court convicted B. of

having committed negligent bankruptcy, failure to pay social security

contributions, fraud on several counts and fraudulent conversion and

sentenced him to six years' imprisonment. The applicant was convicted

of fraudulent conversion in complicity with B. He was sentenced to

three years' imprisonment. As regards the issue of fraudulent

conversion the Regional Court found that in 1980 the applicant, as

general manager of a firm, and in complicity with another person, had

presented an incorrect supplementary bill of more than 28 million AS

in the context of the construction of a brickyard in Crete which the

co-accused, the presiding director of the building enterprise

concerned, had fraudulently approved. The Regional Court orally set

out the main reasons for its judgment.

33. Furthermore, the Regional Court decided, for reasons of

expediency, to separate the proceedings as regards the charge of

bankruptcy as well as some other charges against the applicant and B.

on the ground that further investigations were necessary in these

respects.

34. The written judgment (51 pages) was given to the Court's Registry

on 29 March 1985, and served upon the accused on 24 May 1985.

35. On 12 June 1985 the applicant lodged a plea of nullity

(Nichtigkeitsbeschwerde) and appeal (Berufung), and joined various

documents and in particular observations of an accountant as regards

the accountant expert opinion. The co-accused also appealed. The

Regional Court forwarded the appeals to the Supreme Court (Oberster

Gerichtshof) on 27 June 1985.

36. On 11 April 1986 the co-accused B. filed further submissions.

37. On 30 June 1986 the Supreme Court, upon the applicant's plea of

nullity, quashed the judgment of 13 November 1984 in respect of the

applicant's conviction. The co-accused's plea of nullity was partly

successful. To this extent, the Supreme Court sent the case back to

the Regional Court. It found in particular that the Regional Court had

failed to establish that the applicant had known that the co-accused

had acted fraudulently.

38. On 6 August 1986 the Regional Court received the Supreme Court's

judgment. The files were sent to the Graz Public Prosecutor's Office

on 16 September 1986.

39. On 27 October 1986 the files were returned to the Graz Regional

Court. The Public Prosecutor's Office requested in particular that

other proceedings be joined and a date for trial be fixed as soon as

possible. The Office also confirmed the indictment as regards the

charge of fraud against the co-accused B. in that he had presented

fictitious assignments, and the charge of fraudulent conversion against

the applicant in that he had presented an incorrect supplementary bill

as accomplice of another suspect. It further requested that the

proceedings against the applicant and B. be discontinued as regards

various other charges, inter alia the charge of negligent bankruptcy

against the applicant.

40. The applicant filed a request to take further evidence on

26 November 1986.

41. On 16 February 1987 the Public Prosecutor's Office requested the

Regional Court to fix a date for trial as soon as possible.

42. On 14 April 1987 the Regional Court discontinued certain criminal

proceedings against the accused according to the request of the Public

Prosecutor's Office. The trial was fixed for 6 until 12 May 1987.

43. On 30 April 1987 the applicant again asked for further evidence

to be taken.

44. From 6 until 12 May 1987 the Graz Regional Court held trial. The

trial was continued on 24 and 25 June 1987 with the hearing of further

witnesses.

45. On 25 June 1987 the Graz Regional Court again convicted the

applicant as accomplice to fraudulent conversion and sentenced him to

two years and nine months' imprisonment. The co-accused was convicted

of negligent bankruptcy and fraudulent conversion and acquitted of

fraud on several counts; he was sentenced to four years and six

months' imprisonment.

46. On 22 December 1987 the judgment (comprising fifteen pages) was

served upon the accused.

47. On 8 January 1988 the accused filed their respective pleas of

nullity and appeals, which were forwarded to the Supreme Court on

10 February 1988.

48. On 27 July 1988 the applicant made submissions and filed in

particular a private expert opinion of a civil engineer.

49. On 18 October 1988 the Supreme Court, upon the pleas of nullity

and appeals of the applicant and the co-accused, decided that the

criminal proceedings be re-opened under S. 362 para. 1 of the Code of

Criminal Procedure. The Supreme Court thereby quashed the applicant's

and the co-accused's conviction for fraudulent conversion, and decided

that the proceedings be continued at the stage of preliminary

investigations.

50. S. 362 para. 1, as far as relevant, provides that the Supreme

Court, having heard the Attorney General (Generalprokuratur), may

exceptionally re-open criminal proceedings to the advantage of the

convicted person, if, during the provisional deliberations on a plea

of nullity, or after a public hearing on the plea of nullity, it has

serious doubts as to the correctness of facts upon which the judgment

concerned is based.

51. On 14 November 1988 the judgment was received by the Graz

Regional Court, which sent the files to the Public Prosecutor's Office

one day later. The Supreme Court's judgment was served upon the

parties on 25 November 1988.

52. On 14 December 1988 the Public Prosecutor's Office returned the

files and declared that it did not find any reason to continue the

proceedings against the accused on the charge of fraudulent conversion.

53. On 27 December 1988 the applicant requested that the criminal

proceedings against him be discontinued.

54. By letter of 28 April 1989 the Graz Regional Court informed the

applicant that on 5 January 1989 the criminal proceedings against him

for fraudulent conversion had been discontinued.

III. OPINION OF THE COMMISSION

A.Complaint declared admissible

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

that his case was not heard within a reasonable time.

B. Point at issue

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

Convention

57. 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 ..."

58. The Government consider that the proceedings did not attain an

unreasonable length.

a. Period to be considered

59. The Government submit that the relevant period to be considered

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

29 July 1983, when the applicant was informed about the opening of

criminal proceedings against him, and ended on 5 January 1989 when the

proceedings were discontinued.

60. The Commission recalls that the period to be taken into

consideration under Article 6 para. 1 (Art. 6-1) begins at the time

when formal charges are brought against a person or when that person

has otherwise been substantially affected by actions taken by the

prosecution authorities as a result of a suspicion against him

(cf. Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 50,

p. 33, para. 75).

61. The Commission notes that, in the course of criminal

investigations instituted against other persons in 1981, the Graz

Public Prosecutor's Office requested the opening of preliminary

investigations against the applicant on 22 April 1982. On

23 April 1982 the Regional Court issued search warrants concerning the

applicant's business premises and ordered the seizure of any relevant

documents. The applicant was informed about the decision to

discontinue the proceedings against him on 28 April 1989.

62. The Commission therefore considers that the relevant period

started in April 1982 and ended in April 1989, i.e. seven years later.

b. Reasonableness of the length of the proceedings

63. Arguing the criteria established in the case-law of the

Convention organs, the Government submit in particular that the length

of the proceedings was due to their complexity and the conduct of the

applicant.

64. The Commission recalls that the reasonableness of the length of

the proceedings must be assessed in the light of the particular

circumstances of the case and having regard in particular to the

complexity of the case and the conduct of the applicant and the

relevant authorities (cf. Eur. Court H.R., Baggetta judgment of

25 June 1987, Series A no. 119, p. 38, para. 35).

65. As regards the complexity of the applicant's case, the Commission

notes that criminal proceedings against several other persons,

including the applicant's later co-accused, started already in 1981.

These proceedings concerned complex facts, namely the bankruptcy of

several firms and their financial transactions. The investigations

partly extended to several suspects, and they involved the hearing of

various witnesses and the production of an accountant expert opinion.

The proceedings were thus of some complexity.

66. Moreover, the Commission considers that the applicant did not

unreasonably contribute to the overall length of the criminal

proceedings against him. In particular, it was not incumbent on the

applicant to further the investigations and to submit all evidence and

other material at the earliest possible stage.

67. The Commission has next examined the conduct of the Austrian

authorities.

68. The Commission notes that the preliminary investigations against

the applicant lasted from 23 April 1982 until 9 February 1984 when the

applicant's objections against the indictment of 19 December 1983 were

dismissed. The Commission finds that the Graz Regional Court did not

actively further the investigations between July 1982 and April 1983;

in particular the applicant was not heard as a suspect until July 1983.

69. From 16 February 1984 until 24 May 1985, proceedings against the

applicant and his co-accused B. were pending before the Graz Regional

Court. Other suspects involved in the general context of the offences

in question had been or were meanwhile prosecuted separately. The

preparation of the trial took the Regional Court more than eight

months; it lasted from 5 March until 13 November 1984. After

pronouncement of the judgment against the accused at the end of the

trial, it took the Regional Court more than four months to draft the

written version of the judgment. A further delay of about one and a

half months occurred at the Court's registry.

70. The first set of appeal proceedings before the Supreme Court

lasted from 12 June 1985 until 30 June 1986, thus more than one year.

This delay has not been explained by the respondent Government.

71. The second set of proceedings before the Graz Regional Court

lasted from 6 August 1986 until 22 December 1987, i.e. one year and

four and a half months. There was, despite reminders of the Public

Prosecutor's Office, no activity of the Regional Court between October

1986 and 14 April 1987 when the trial was fixed for May 1987. After

conviction of the accused on 25 June 1987, the Regional Court completed

the written version of its judgment, comprising fifteen pages, more

than five months later.

72. The second set of appeal proceedings before the Supreme Court

lasted from 8 January 1988 until 18 October 1988. Having regard to the

overall length of the proceedings at this stage, there is no sufficient

explanation for this delay.

73. Furthermore, the Regional Court's decision of 5 January 1989 to

discontinue the proceedings was not notified to the applicant until

almost four months later, on 28 April 1989.

74. The Commission finds that the length of the criminal proceedings

against the applicant cannot be justified by the complexity of the

case, or the conduct of the applicant. Consequently, as a result of

various delays 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

75. 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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NIESENBACHER v. AUSTRIA

NIESENBACHER v. AUSTRIA

LEXI