Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 13373/87

H.

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 8 July 1991)

TABLE OF CONTENTS

Pages I.

INTRODUCTION

(paras. 1 - 15) ........................................ 1-2

A. The application

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

B. The proceedings

(paras. 5 - 10) ................................ 1

C. The present Report

(paras. 11 - 15) ............................... 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 40) ...................................... 3-5

III. OPINION OF THE COMMISSION

(paras. 41 - 58) ....................................... 6-8

A. Complaint declared admissible

(para. 41) .......................................... 6

B. Point at issue

(para. 42) .......................................... 6

C. As to the alleged violation of Article 6

para. 1 of the Convention

(paras. 43 - 57) .................................... 6-8

1. General considerations (paras. 43 - 44) .......... 6

2. Determination and assessment of the length

of proceedings (paras. 45 - 57) .................. 6-8

D. Conclusion

(para. 58) .......................................... 8

APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 9

APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 10

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, H., is an Austrian citizen, born in 1952 and

residing in Hagenberg, Austria. She is represented by Messrs.

Christian Slana and Günter Tews, lawyers practising in Linz.

3. The application is directed against Austria. The respondent

Government are represented by their Agent, Mr. Helmut Türk, Head of

the International Law Division of the Federal Ministry of Foreign

Affairs.

4. The application concerns the length of criminal proceedings

instituted against the applicant on the basis of a complaint filed with

the police on 15 November 1983 and discontinued on 25 October 1988.

The applicant complains of the unreasonable length of the proceedings

and alleges a violation of Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 15 June 1987 and registered

on 12 November 1987. On 6 July 1989 the Commission decided to give

notice of the application to the Austrian Government and to invite them

to present their observations in writing on the admissibility and

merits of the application.

6. The Government presented their observations on 25 October 1989

and the applicant replied on 18 December 1989.

7. On 7 May 1990 the Commission declared the application

admissible.

8. On 28 May 1990 the parties were invited, should they so desire,

to submit further evidence and observations on the merits of the

application. They did not avail themselves of this possibility.

9. After consulting the parties the Commission, by decision of 8

December 1990, referred the application to the First Chamber.

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

accordance with Article 28 para. 1 (b) of the Convention, placed itself

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

settlement of the case. Consultations with the parties took place

between 28 May and 7 September 1990. 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

11. 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

H. DANELIUS

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

12. The text of this Report was adopted on 8 July 1991 and is now

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

accordance with Article 31 para. 2 of the Convention.

13. 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.

14. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application forms Appendix II.

15. 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

16. The applicant was the director of a kindergarten owned by a

welfare organisation (Österreichischer Sozialhilfe- und Wohlfahrts-

verband). On 10 November 1983 her employer laid criminal charges

against her alleging that she had committed embezzlement. The

complaint was filed with the Linz Federal Police Directorate

(Bundespolizeidirektion) on 15 November 1983.

17. On 18 November 1983 the applicant was given notice by her

employer. A labour court action brought by her against her former

employer was adjourned pending the outcome of the criminal proceedings.

18. In January 1984 the applicant was again appointed director of

the kindergarten in question which had been taken over by another

organisation.

19. Having received the complaint the police started an

investigation. On 15 November 1983 a search and seizure order was

issued by the Regional Court (Landesgericht) in Linz and a report on

the result of the search and seizure was submitted on 28 December 1983.

It comprised 706 pages. On 16 December 1983 the applicant's counsel

submitted a power of attorney.

20. The applicant was summoned on 30 December 1983 and heard on 24

January 1984 at the Regional Court.

21. On 31 January 1984 the Public Prosecution requested that

preliminary investigations (Voruntersuchung) be opened as the applicant

was suspected of having committed embezzlement (Veruntreuung). On 2

February 1984 the request was granted by the Regional Court.

22. On 10 February 1984 the files were sent to the Labour Court

(Arbeitsgericht) following a request by this Court. They were returned

on 13 March 1984.

23. On 30 March 1984 the applicant was summoned and she was heard

on 4 May 1984. The witness P. of the Regional Control Commission

(Landeskontrollkommission) was likewise heard and requested to submit

certain documents. On 25 July 1984 the applicant submitted a memorial

with documentary evidence. On 8 August 1984 the applicant and the

witness P. were again summoned to appear on 4 September 1984. The

witness P. was prevented from appearing, and only the applicant and two

further witnesses, Pe. and L., were heard on 4 September 1984.

24. On 24 September 1984 the file was submitted to the Public

Prosecution which on 2 October 1984 filed an indictment accusing the

applicant of having embezzled approximately 225,000 AS since 1978. It

stated that the applicant had admitted before the police having used

between 1978 and 1983, for private daily expenses, money paid to her

by parents as contributions to the running of the kindergarten. She had

alleged that initially she only intended to borrow the money but later

she lost control. Also she had repaid a sum of 41,000 AS as

compensation when her irregularities were discovered. 25. The

applicant had, however, withdrawn her confession before the

investigating judge on 24 January 1984, apparently after consultation

with her defence counsel. She had then alleged that she had used all

the money for purposes of the kindergarten. The indictment concluded

that this version was not trustworthy. From the fact that the

applicant had even accepted to pay compensation it followed that her

confession corresponded to what had actually happened.

26. In a memorial of 14 November 1984 the applicant's defence

counsel contested the charges and requested that an expert opinion from

an accountant be obtained in order to prove that the applicant had

spent the funds entrusted to her for purposes of the kindergarten only.

27. On 21 November 1984 the Regional Court in Linz ordered that an

expert opinion, as requested by the defence counsel and also by the

public prosecutor, be obtained. A hearing that had been fixed for 23

November was consequently cancelled and the file sent back to the

investigating judge. On 23 November 1984 Prof. H. in Linz was charged

with the task of establishing the expert opinion.

28. On 27 August 1986 the public prosecutor requested the Court to

urge the expert to submit his expert opinion. It follows from a file

note made on 4 September 1986 that the Court was in touch with the

expert in order to make him expedite his work and that the expert

stated he would submit his expert opinion at the beginning of October.

According to the expert he had tried to contact the applicant but she

had been on holiday the whole summer.

29. The expert opinion was submitted on 10 December 1986. On 22

December 1986 two witnesses (A.Pe. and K.Pl.) were summoned and heard

on 12 January 1987. The preliminary investigations were subsequently

terminated and on 19 January 1987 the files were submitted to the trial

court. On 23 January 1987 the presiding judge had to withdraw from the

case because he had dealt with the matter while working as a public

prosecutor. On 28 january 1987 the case was assigned to another judge.

30. On 25 February 1987 the first trial hearing was fixed for 11

May 1987. On 1 April 1987 the defence requested nine witnesses to be

summoned (P.H., O.H., B.B., H.S., K.Pl., E.Po., E.St., J.A. and A.Pe.).

The defence also criticised the expert opinion as being incomplete.

31. Having consulted the Public Prosecutor, the Court then tried

in vain to contact the expert H. by telephone in order to find out

whether he could complement his expert opinion before the hearing of

11 May 1987. A copy of the defence memorial of 1 April 1987 was sent

to the expert on 5 May 1987.

32. At the oral hearing of 11 May 1987 it was decided to refer the

matter back to the investigating judge for the hearing of witnesses

F.D., T.R., and E.K.. Furthermore, it was ordered that invoices and

other documents which the applicant allegedly kept in a yellow envelope

be procured and that the expert complement his opinion by establishing

a list of receipts and expenditures on the basis of both the

defendant's documents and those on which the police and the control

authorities had relied. 33. On 4 June 1987 the file was sent to the

investigating judge who, on 15 June 1987, summoned the witnesses F.D.,

T.R., and E.K. to appear on 1 July 1987. E.K. replied that he could

not make any statements relevant to the case.

34. On 29 June 1987 the police authorities were requested to make

enquiries with regard to the existence of a yellow envelope with

invoices and documents and with regard to the authorship of the audit

report of 1983 incriminating the applicant.

35. On 1 July 1987 the witnesses T.R. and F.D. were heard.

36. On 16 September 1987 the police authorities reported that a

yellow envelope with documents had not been found during the search and

seizure in November 1983. M.D. and L. Sch. were named as authors of

the audit report.

37. On 22 October 1987 the witness E.K., who had been summoned

again on 2 October 1987, was heard and the witnesses M.L. and L. Sch.

were summoned and heard on 4 November 1987. On the same day the files

were sent to the expert H. for complementation of his expert opinion.

38. According to a file note of the Public Prosecution of 7 June

1988 attempts had repeatedly been made to contact the expert H. by

telephone. On 8 June 1988 the Public Prosecutor requested the

appointment of another expert. On 13 June 1988 the Court granted this

request and appointed the expert M.

39. On 13 July 1988 the expert H. submitted his supplementary

report. The appointment of M. was therefore cancelled.

40. On 28 July 1988 the Public Prosecutor withdrew the indictment

and on the following day the Regional Court discontinued the

proceedings. On 17 August 1988 the private party to the proceedings

stated that the accusations against the applicant were maintained. On

24 October 1988 this declaration was withdrawn, and on 25 October 1988

the proceedings were definitely discontinued on this ground.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

41. The Commission has declared admissible the applicant's

complaint that the length of the criminal proceedings against her

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

B. Point at issue

42. Accordingly, the issue to be determined is whether there has

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

C. As to the alleged violation of Article 6 para. 1

(Art. 6-1) of the Convention

1. General considerations

43. Under the terms of Article 6 para. 1 (Art. 6-1) first sentence

of the Convention, "In the determination of ... a criminal charge

against him, everyone is entitled to a ... hearing within a reasonable

time by a ... tribunal ...".

44. The Commission recalls that the reasonableness of the length

of proceedings must be assessed according to the circumstances of the

case and with reference to the following criteria: the complexity of

the case, the conduct of the applicant and the conduct of the

authorities dealing with the case (Eur. Court H.R., Milasi judgment

of 25 June 1987, Series A no. 119, p. 46 para. 15).

2. Determination and assessment of the length of proceedings

45. Regarding the period to be considered, the Commission notes

that the complaint filed on 15 November 1983 marks the commencement of

the proceedings in question.

46. They were ended on 25 October 1988 when the Regional Court in

Linz decided to discontinue the proceedings. The proceedings

consequently lasted nearly five years.

47. The applicant submits that this lapse of time cannot be deemed

to be "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention. The criminal proceedings did not involve difficult

factual or legal issues. The indictment was prepared without prior

complete establishment of all relevant facts and without giving the

applicant adequate facilities to explain the manner in which she had

received and spent the money for the purposes of the kindergarten.

Therefore an expert opinion became necessary. The applicant received

knowledge of the expert report only three months after it had been

submitted to the Court, i.e. on 6 March 1987, when she was informed

that a trial hearing had been fixed for 4 May 1987. Only subsequently

was it possible for her to request the taking of further evidence as

the expert report was incomplete.

48. According to the applicant it is a notorious fact that Mr. H.,

being a renowned expert, is overburdened with work. The Court, when

choosing this expert, did not ensure that the expert would submit his

report within a reasonable time.

49. The Government submit that the case was complex because

embezzlement was alleged to have taken place over a period of six years

and a large number of documents had to be collected, checked and

compared with one another to find out the purposes for which the money

entrusted to the applicant had been used. The applicant herself based

her request of 4 August 1988 for reimbursement of costs on the

affirmation that the proceedings were of an extremely tedious and

difficult nature as it was necessary to work through some 1441 copies

of documentary evidence.

50. The Government further state that the applicant caused certain

delays in that, apparently for tactical reasons, she submitted requests

for the taking of further evidence shortly before the hearings, i.e.

on 15 November 1984 and 1 April 1987. This made it necessary to refer

the case back to the investigating judge. Only two of the witnesses

named by the defence in the request of 1 April 1987 had already been

named and heard before.

51. Finally, the respondent Government consider that the State

cannot be held responsible for the delays caused by the expert as the

judicial authorities could not do more than urge the expert, as they

did by way of various telephone calls, to complete his work. Eventually

it was even decided to replace Mr. H. by another expert. Even if this

measure had been taken earlier a new expert would have needed a certain

time to study the case.

52. The Commission considers that the proceedings in question did

in fact raise certain complex issues of a factual nature in view of the

uncontestedly voluminous amount of documentary evidence which it was

apparently necessary to take into account in the establishment of the

facts.

53. As regards the handling of the case by the investigating and

judicial authorities, the Commission finds two prolonged periods of

inactivity which raise doubts as to the observance of the right to a

trial within a reasonable time. These periods during which the

proceedings practically came to a standstill were those during which

the matter was in the hands of the expert H., namely from 23 November

1984 to 10 December 1986, i.e. about two years, and again from 4

November 1987 to 13 July 1988, i.e. about eight months. The Government

have not alleged that these delays were due to the complexity of the

matter. They have only argued that the expert was urged to complete

his work and that replacing him would also have caused a loss of time.

54. However, the Court and the Commission have previously held that

the judicial authorities are responsible for the way in which expert

assessments ordered by them are carried out. Experts work within the

framework of judicial proceedings supervised by a competent judge, who

remains responsible for the preparation and speedy conduct of the trial

(cf. Eur. Court H.R., Martins Moreira judgment of 26 October 1988,

Series A no. 143, p. 21 para. 60; Gobrecht v. Austria, Comm. Report

3.7.89, No. 11744/85, para. 75). It cannot be found in the present

case that sufficient and effective measures were taken by the competent

authorities to speed up the preparation of the expert opinion. It has

not been shown that, before appointing the expert H., the Court, by

fixing a time-limit or otherwise, tried to ensure that his report would

be available within a reasonable time. Furthermore, more than one and

a half years elapsed before the Court contacted the expert H. in order

to make him expedite his work. After H. had been requested on 4

November 1987 to submit supplementary explanations, several months

again elapsed before the Court took any action.

55. The applicant may also have contributed to the delay in the

investigation proceedings. While in 1983 she first confessed to having

embezzled funds, she later claimed to have spent all the money for

kindergarten purposes but did not name some of the witnesses until 1

April 1987. However, the applicant cannot be held responsible for the

time it took the expert to submit his report and his supplementary

explanations, and it was the expert's slowness which was the main cause

of the delay in the proceedings.

56. The expert allegedly could not reach the applicant in the

summer of 1986. However, it still remains unexplained why he remained

inactive from 23 November 1984 until that time.

57. Taking all relevant factors into consideration, the Commission

is of the opinion that the applicant's case was not heard within a

"reasonable time".

D. Conclusion

58. 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. de SALVIA) (J.A. FROWEIN)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

15 June 1987 Introduction of the application

12 November 1987 Registration of the application

Examination of Admissibility

6 July 1989 Commission's decision to invite

the Government to submit observations

on the admissibility and merits of

the application

25 October 1989 Government's observations

18 December 1989 Applicant's observations in reply

7 May 1990 Commission's decision to declare the

application admissible

Examination of the merits

28 May 1990 Decision on admissibility transmitted

to the parties

17 April 1991 Commission's consideration of the

state of proceedings

8 July 1991 Commission's deliberations on the

merits, final vote and adoption of

the Report

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HIRIS v. AUSTRIA

HIRIS v. AUSTRIA

LEXI