Lexploria

Application No. 12896/87

Franz SCHADEN

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 12 February 1990)

TABLE OF CONTENTS

Page

INTRODUCTION ........................................... 1

PART I: ESTABLISHMENT OF THE FACTS ...................... 3

PART II: SOLUTION REACHED ................................ 4

I. INTRODUCTION

1. This Report relates to Application No. 12896/87 introduced by

Franz Schaden against Austria on 10 January 1987 under Article 25 of

the Convention for the Protection of Human Rights and Fundamental

Freedoms. The application was registered on 28 April 1987.

The applicant was represented before the Commission by

K. Bernhauser, lawyer, Vienna.

The Government of Austria were represented by their Agent,

Ambassador Helmut Türk, Head of the International Law Department at

the Federal Ministry of Foreign Affairs.

2. On 9 May 1989 the European Commission of Human Rights declared

the application admissible.* The Commission then proceeded to carry

out its task under Article 28 para. 1 of the Convention ** which

provides as follows:

"1. In the event of the Commission accepting a petition

referred to it:

(a) it shall, with a view to ascertaining the facts,

undertake together with the representatives of the parties

an examination of the petition and, if need be, an

investigation, for the effective conduct of which the

States concerned shall furnish all necessary facilities,

after an exchange of views with the Commission;

(b) it shall at the same time place itself at the

disposal of the parties concerned with a view to securing a

friendly settlement of the matter on the basis of respect

for Human Rights as defined in this Convention."

3. The Commission found that the parties had reached a friendly

settlement of the case and on 12 February 1990 it adopted this Report

which, in accordance with Article 28 para. 2 of the Convention **, is

confined to a brief statement of the facts and of the solution

reached.

____________

* This decision is public and can be obtained from

the Commission's Secretary.

** As amended with effect from 1 January 1990.

The following members of the Commission were present when the

Report was adopted:

MM. C. A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. C. L. ROZAKIS

Mrs.J. LIDDY

Mr. L. LOUCAIDES

PART I

STATEMENT OF THE FACTS

4. The applicant, born in 1949, is a German national and resident

at Retz, Austria. He is an oenologist and businessman by profession.

5. The applicant was manager of two limited liability companies

trading in wine and spirits. One of them was owned by the applicant's

father, the other was jointly owned by the applicant and his father.

In June 1977 the Korneuburg Regional Court (Kreisgericht) instituted

preliminary investigations (Voruntersuchung) against the applicant's

father on the suspicion of fraud and bankruptcy offences. In July and

August 1977 bankruptcy proceedings were opened against the two

companies. In September 1977 the Korneuburg Regional Court joined

criminal proceedings against the applicant, his father and a further

person on the suspicion of conversion of goods in official custody

(Verstrickungsbruch), which had been conducted at the Retz District

Court (Bezirksgericht), with the investigation proceedings against the

applicant's father concerning fraud and bankruptcy offences.

Furthermore, investigations were started against the applicant who was

suspected of having committed fraud as manager of the two above

companies.

6. On 28 February 1980 the Korneuburg Public Prosecutor's Office

preferred the indictment (Anklageerhebung) against the applicant on

charges of fraud, conversion of goods in official custody, retention

of social security contributions (§114 of the Social Security Act -

ASVG) and fraudulent bankruptcy (fahrlässige Krida). The criminal

proceedings against the other suspects were discontinued.

7. On 29 January 1981 the Korneuburg Regional Court convicted the

applicant of fraud on six counts, fraudulent bankruptcy, conversion

of goods in official custody and retention of social security

contributions, and sentenced him to two years' imprisonment. The

applicant was acquitted of the charge of fraud on seven further

counts.

8. Following partly successful appeal proceedings before the

Austrian Supreme Court (Oberster Gerichtshof) in 1981, the Korneuburg

Regional Court conducted the second trial on 9 and 10 July and

13 September 1985. It convicted the applicant of fraud on five counts

and of bankruptcy offences by which he had caused a total damage of

more than 15 million AS. He was sentenced to one and half years'

imprisonment. He was acquitted of the charge of fraud on one count.

9. On 9 September 1986 the Supreme Court dismissed the

applicant's plea of nullity (Nichtigkeitsbeschwerde) and appeal

(Berufung). The decision was served on 7 November 1986.

10. Before the Commission the applicant complained under Article 6

para. 1 of the Convention of the length of the criminal proceedings

against him.

PART II

SOLUTION REACHED

11. Following its decision on the admissibility of the

application, the Commission placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the parties

to submit any proposals they wished to make.

12. In accordance with the usual practice, the Secretary, acting

on the Commission's instructions, contacted the parties in order to

explore the possibilities of reaching a friendly settlement.

13. Following an exchange of letters through the intermediary

of the Secretary, the Commission resumed its examination of the above

case on 8 December 1989. Having regard to the case-law of the Court

under Article 50 of the Convention, and the practice of the Commission

as regards proposals to the Committee of Ministers in the context of

Article 32 of the Convention and the Rules adopted by the Committee

of Ministers for the application of Article 32, the Commission

proposed to the parties a friendly settlement of the above case on the

basis of a payment of AS 200,000.

14. The respondent Government accepted the Commission's proposal by

letter of 12 January 1990, the applicant by letter of 19 January 1990.

15. The Commission, at its session on 12 February 1990, noted

that the parties had reached an agreement regarding the terms of a

settlement. The Commission further found, having regard to the

terms of Article 28 para. 1 (b) of the Convention, that a friendly

settlement had been secured on the basis of respect for Human Rights

as defined in the Convention.

For these reasons, the Commission adopted this Report.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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SCHADEN v. AUSTRIA

SCHADEN v. AUSTRIA

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