Application No. 11688/85

Hannes MLYNEK

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 10 March 1988)

TABLE OF CONTENTS

                                                                Page

I.      INTRODUCTION

        (paras. 1-13). .........................................   1

        A.      The application

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

        B.      The proceedings

                (paras. 5-8). ..................................   1

        C.      The present Report

                (paras. 9-13). .................................   2

II.     ESTABLISHMENT OF THE FACTS

        (paras. 14-30). ........................................   3

        A.      The particular circumstances of the case

                (paras. 14-28)..................................   3

        B.      Relevant domestic law

                (paras. 29-30)..................................   6

III.    SUBMISSIONS OF THE PARTIES

        (paras. 31-55)..........................................   8

        A.      The applicant

                (paras. 32-43)..................................   8

        B.      The Government

                (paras. 44-55)..................................  10

IV.     OPINION OF THE COMMISSION

        (paras. 56-93).........................................   13

        A.      Point at issue

                (para. 56)......................................  13

        B.      Applicability of Article 6 para. 1

                (paras. 57-58)..................................  13

        C.      Issue of being a victim

                (paras. 59-62)..................................  13

        D.      Compliance with Article 6 para. 1

                (paras. 63-92)................................    14

                1.  Period to be considered

                    (paras. 64-68).............................   14

                2.  Relevant criteria

                    (paras. 69-71).............................  15

                3.  Complexity of the case

                    (paras. 72-77).............................  15

                4.  Conduct of the applicant

                    (para. 79).................................  16

                5.  Conduct of the authorities

                    (paras. 80-92).............................  16

        E.      Conclusion

                (para. 93).....................................  19

APPENDIX I:   HISTORY OF THE PROCEEDINGS ......................  20

APPENDIX II:  DECISION ON THE ADMISSIBILITY ...................  21

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, born in 1943, is an Austrian citizen living in

Vienna where he is working as a lawyer.

        The application is directed against Austria whose Government

were represented by their Agent, Ambassador Helmut Türk, Head of the

International Law Department at the Federal Ministry of Foreign

Affairs.

3.      The application relates to criminal proceedings instituted

against the applicant on 21 March 1980.  On 30 May 1984 the Vienna

Regional Court convicted the applicant of the misappropriation of

funds and fraud and sentenced him to six years' imprisonment.  The

decision containing the written reasons was served on the applicant on

4 July 1986.  Upon the applicant's plea of nullity, the Supreme Court,

on 30 January 1987, quashed the decision of the Regional Court and

ordered a new trial and decision by that Court.

4.      The applicant complains under Article 6 para. 1 of the

Convention of the undue length of the proceedings, in particular that

he did not receive the written reasons of the judgment until 25 months

after it was pronounced.  The applicant also alleges a violation of his

right, under Article 6 para. 1, to a hearing before a tribunal

established by law.

B.    The proceedings&_

5.      The application was introduced on 2 May 1985 and registered on

9 August 1985.  On 21 October 1985 the Rapporteur, acting under

Rule 40 para. 2 (a) of the Commission's Rules of Procedure, requested

information from the respondent Government.  The information was

provided by the Government on 15 November 1985.  The applicant

submitted his reply thereto on 18 December 1985.

6.      On 3 March 1986 the Commission decided in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the

application to the respondent Government and to invite them to present

before 16 May 1986 their observations in writing on the admissibility

and merits of the application.  The Government's observations of

20 May 1986 were received on 21 May 1986.  The applicant's reply thereto

of 6 June 1986 was received on 12 June 1986.  The Government submitted

further information on 29 July 1986.  The applicant replied thereto on

11 August 1986.

7.      On 16 October 1986 the Commission declared admissible the

applicant's complaint under Article 6 para. 1 of the Convention

concerning the length of the proceedings.  The remainder of the

application was declared inadmissible.

8.     After declaring the application in part 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 of the case.  Consultations

with the parties took place between 19 November 1986 and

28 October 1987.  In the light of the parties' reaction, the

Commission now finds that there is no basis upon which a settlement

can be effected.

C.      The present Report&S

9.      The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberation and

votes, the following members being present:

                    MM. C.A. NØRGAARD, President

                        S. TRECHSEL

                        F. ERMACORA

                        G. SPERDUTI

                        E. BUSUTTIL

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        J.C. SOYER

                        H. DANELIUS

                        G. BATLINER

                        H. VANDENBERGHE

                   Mrs.  G.H. THUNE

                   Sir  Basil HALL

                   MM.  F. MARTINEZ

                        C.L. ROZAKIS

                   Mrs.  J. LIDDY

10.    The text of this Report was adopted on 10 March 1988 and

is now transmitted to the Committee of Ministers of the Council of

Europe in accordance with Article 31 para. 2 of the Convention.

11.    The purpose of the Report, pursuant to Article 31 para. 1 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 respondent Government of

        its obligations under the Convention.

12.      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 as Appendix II.

13.      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.    The particular circumstances of the case&_

14.     On 21 May 1981 criminal investigations were instituted against

the applicant and other persons in respect of various economic

offences alleged to have been committed in connection with the

bankruptcy of the K-T company.  In particular, Dr.  K, the chairman of

the board of directors of the E Union AG, was charged with the

misappropriation of funds (Untreue) on the occasion of a participation

in the share capital increase of the K-T company amounting to 32.2

million AS. Messrs.  T and S as well as the applicant were charged with

participation in this offence, moreover Messrs.  T and S with

extricating a loan of 25 million AS from a bank and Dr.  K and the

applicant with participating in this offence.  The applicant was

thereupon detained on remand from 1 July until 20 July 1982 on the

ground of a danger of collusion.

15.     On 20 April 1983 the applicant, Dr.  K and Mr.  S were indicted

at the Vienna Regional Court sitting with lay judges (Landesgericht als

Schöffengericht).  The bill of indictment counted 183 pages.  The

proceedings in respect of Mr.  T were separated after he had been released

from custody and had absconded.

16.     The trial (Hauptverhandlung) before the Vienna Regional

Court lasted from 2 December 1983 until 30 May 1984.  During this

period of time, 55 hearings (Verhandlungstage) were conducted.  Up to

the trial the case-file consisted of 63 volumes, thereafter of 81

volumes.  During the trial 120 witnesses were heard.  The minutes of

the trial consisted of 7,150 pages.  In addition there were some 40

volumes of expert opinions and other evidence.  After the evidence

proceedings were closed there followed the pleadings of the parties

lasting eight days, and the deliberations of the Court lasting four

days.

17.     On 30 May 1984, at its fifty-fifth hearing, the Vienna

Regional Court publicly pronounced its judgment.  The bench was

composed of two professional and two lay judges.  The applicant was

convicted of misappropriation of funds and fraud and sentenced to six

years' imprisonment.  Dr.  K and Mr.  S were sentenced to six and eight

years' imprisonment, respectively.  According to the minutes, the

presiding judge also stated "the essential reasons of the judgment"

(die wesentlichen Urteilsgründe).  The applicant who was present at

the hearing announced that he would file a plea of nullity

(Nichtigkeitsbeschwerde) and an appeal (Berufung).  The minutes of the

hearing on 30 May 1984 were served on 4 June 1984.

        The written reasons of the judgment were eventually served on

the applicant on 4 July 1986.

18.     Also on 30 May 1984 the applicant was detained on remand on

the ground of a danger of absconding.  His detention lasted until

2 August 1984 when he was released on bail amounting to 2,5 million

AS.  Bail was eventually reduced to 1 million AS and later waived

altogether.

19.     With respect to the period after judgment was pronounced

publicly on 30 May 1984, the Government have submitted a time chart

which schedules the workload of the judge responsible for the

preparation of the written reasons of the judgment and in particular

the hearings she had to attend in other cases.

20.     As regards these hearings, it transpires from this chart that

on 30 July 1984 the respective judge sat alone in several hearings.

In November 1984 she sat in four hearings.  In 1985 she sat in

approximately 80 hearings lasting between ten minutes and seven hours

and on average four hours each.  Between 7 January and 9 April 1986 the

judge again sat in 31 hearings.

21.     As regards the case-list of the judge concerned, the chart

submitted by the Government indicates that, as head of the department

3 (d) of the Vienna Regional Court, the judge was exempted from new

business in view of the conduct of the present proceedings from 1 July 1983

until 31 December 1984.  Until 30 June 1983, she was allocated a

total of 119 new cases.  In 1984, there were eight additional

proceedings, resulting from appeal proceedings, the resumption of a

case, or the separation from older proceedings.

22.     As from 1 January 1985, the judge was put in charge of the

newly established economic crimes department 12 (b).  From 5 March 1985

to 31 December 1985, she was also exempted from new business

there on account of an economic criminal prosecution, the so-called

"WBO-case".  At the same time, she remained in charge of other

past or future proceedings connected with this case.

        In this Court department, the judge had to deal with a total

of 18 criminal cases between 1 January and 4 March 1985, and a total

of 24 between 1 January and 31 March 1986.

23.     In the jury department 20 (v), which has been headed by the

judge concerned since 1 July 1983, there were four new cases in 1983,

four new cases in 1984, five new cases in 1985 and one new case until

March 1986.  Of these, two were terminated in 1983, four in 1984, and

six in 1985, so that the only unsettled jury case is the one of 1986.

24.     The Government have also indicated the steps taken by the

competent supervisory authority in order to attain the preparation of

the written reasons of the judgment.  Thus, the supervisory panel

(Personalsenat) of the Vienna Regional Court ordered that no new cases

were to be referred to the head of the department 3 (d).  The

preparation of the written reasons of the judgment was then initially

monitored only on the basis of monthly reports.

25.     Subsequently, the preparation of the written reasons was

checked in the course of an administrative supervision procedure.

Thereby, the judge concerned stated in her reports to the President of

the Court of Appeal that preparation of the written reasons was

progressing steadily and would be completed soon.  As the judge did

not keep the deadlines set for her, the President eventually filed a

disciplinary action (Disziplinaranzeige) against the judge in early

November 1985.  Moreover, the supervisory panel decided on 21 April 1986

to appoint as of 1 May 1986, until further notice, another judge as

deputy head of the economic crimes department 12 (b).

26. On 26 July 1986 the judge transmitted the decision with the

written reasons to the Vienna Regional Court.  They were communicated

to the applicant on 4 July 1986.  The decision numbered 1196 pages and

consisted to a substantial extent of photocopies of other documents.

27.     On 18 July 1986 the applicant filed a plea of nullity and an

appeal.  Therein he complained, inter alia, that the Regional Court

had in its judgment committed many errors and ignored various decisive

elements of evidence.  He further complained that the judgment

consisted largely of photocopies of other documents and that it was

therefore impossible to determine which part of the decision actually

stemmed from the Court.  The applicant also complained of the

incorrect application of various legal provisions and of the sentence.

28.     On 30 January 1987 the Supreme Court (Oberster Gerichtshof),

having obtained the opinion of the Attorney General (General-

prokurator), granted the plea of nullity, quashed the judgment of the

Regional Court and sent the case back to that Court for a new trial

and decision.  The Supreme Court, which quoted extensively from the

Attorney General's opinion, found, inter alia, that the decision of

the Regional Court only insufficiently discussed certain points which

in fact contradicted its conclusions and that the Regional Court had

incorrectly assessed the conduct of the accused.  The Supreme Court

continued:

"Die in rund 1190 Seiten dargelegten Entscheidungsgründe

widersprechen nach Form und Inhalt eklatant der Bestimmung

des § 270 Abs. 2 Z. 5 StPO ...  Es mag sich im Einzelfall bei

der Erfüllung dieses Gesetzesauftrages durchaus als sinnvoll

erweisen, den Inhalt von Aussagen oder Schriftstücken

wortgetreu (wenn dem Verständnis besser dienlich, auch in

Form von Fotokopien) in die Urteilsbegründung zu übernehmen.

Mit dem Gebot einer gedrängten Darstellung ist es aber

unvereinbar, anstelle eigenständiger Formulierung des für

erwiesen erachteten Sachverhaltes viele hundert Seiten von

Schriftstücken aus den Akten zu fotokopieren und dem Urteil

einzuverleiben, wie dies im vorliegenden Fall gehandhabt

wurde.  Noch dazu, wenn - wie hier - sich aus solcher

blosser Zusammenstellung von Beweismaterial ergebende

Widersprüche und Ungereimtheiten nicht nach Massgabe des

§ 270 Abs. 2 Z. 5 StPO wertend erörtert, vielmehr

Beweisergebnisse (vor allem Aussagen von Zeugen) weitgehend

durch Zuordnung zu bestimmten Gruppen abgetan werden, denen

pauschal und ohne auf individuelle Umstände näher einzugehen,

Glaubwürdigkeit zuerkannt oder abgesprochen wird."

"The reasons for the decision which have been given on

approximately 1190 pages starkly contradict in form and

content the provision of Section 270 para. 2 (5) of the

Code of Criminal Procedure ....  It may well be reasonable

in an individual case, when complying with this order of the

law, to take over verbatim the content of statements or

documents into the reasons of the decision (also by means of

photocopies, if this enhances the understanding).  It is not

compatible with the requirements of a compressed

presentation, however, to photocopy as in the present case

many hundreds of pages from documents of the file and to

insert them into the judgment instead of independently

formulating the facts which are regarded as established.

This is all the more so if - as here - the decision does not

evaluate, according to Section 270 para. 2 (5) of the Code

of Criminal Procedure, contradictions and irregularities

which result from the mere compilation of the evidence.

Instead, the decision rather deals with the results of

the taking of evidence (in particular witnesses' testimony)

largely by attributing the results to certain groups,

in respect of which credibility has been granted, or

not granted, collectively without considering the

individual circumstances."

B.    Relevant domestic law&_

29.     The proceedings instituted against the applicant fall under

the Austrian Code of Criminal Procedure.  Sections 257 to 270 of the

Code concern the judgment of the first instance Court, its

pronouncement and the preparations of the written reasons.

Section 270 states, insofar as it is relevant for the present case:

"(1) Jedes Urteil muss binnen vierzehn Tagen vom Tage der

Verkündung schriftlich ausgefertigt und vom Vorsitzenden

sowie vom Schriftführer unterschrieben werden.

(2) Die Urteilsausfertigung muss enthalten:

...

5.  die Entscheidungsgründe.  In diesen muss in gedrängter

Darstellung, aber mit voller Bestimmtheit angegeben sein,

welche Tatsachen und aus welchen Gründen der Gerichtshof sie

als erwiesen oder als nicht erwiesen angenommen hat, von

welchen Erwägungen er bei der Entscheidung der Rechtsfragen

und bei Beseitigung der vorgebrachten Einwendungen geleitet

wurde und, im Fall einer Verurteilung, welche Erschwerungs-

und Milderungsumstände er gefunden hat."

"(1) The written reasons for every judgment shall be

prepared within fourteen days from the date of the

pronouncement and shall be signed by the president as well

as the reporter.

(2)  The written reasons of the judgment shall contain:

...

5.   the grounds for the decision.  Therein shall be

mentioned in a compressed presentation, but with full

precision, which facts are regarded as established, or not

established, by the Court, and the reasons therefor;  the

considerations which guided the Court when deciding the

legal issues and when rejecting the objections made;  and,

in the case of a conviction, which aggravating or mitigating

circumstances the Court has found."

        As regards in particular the time-limit stated in Section 270

para. 1, its breach does not according to Austrian doctrine lead to

the nullity of the decision (see E. Foregger/E. Serini, Die öster-

reichische Strafprozessordnung, Vienna 1982, p. 318 N. II).

30.     Sections 280 to 296 of the Code of Criminal Procedure

concern the remedies available against a judgment.  Section 284 which

concerns the procedure in the case of a plea of nullity states in its

para. 1 that, if the accused was present at the hearing, the plea of

nullity must be filed within three days after the Court of first

instance has pronounced its judgment.  Section 285 para. 1 states,

insofar as it is relevant for the present case:

        "(1) Der Beschwerdeführer hat das Recht, binnen vierzehn

        Tagen nach der Anmeldung der Nichtigkeitsbeschwerde, wenn

        ihm eine Urteilsabschrift aber erst nach der Anmeldung des

        Rechtsmittels zugestellt wurde, binnen vierzehn Tagen nach

        der Zustellung eine Ausführung seiner Beschwerdegründe beim

        Gericht in zweifacher Ausfertigung zu überreichen..."

        "(1) The applicant has the right to submit with the Court

        in duplicate the written reasons for his plea of nullity

        within fourteen days after he has filed his plea of nullity

        or, if the copy of the decision is served on him only after

        the remedy was filed, within fourteen days after the decision

        is served ..."

III.  SUBMISSIONS OF THE PARTIES

31.     The following is an outline of the parties' main arguments on

the merits of the applicant's admitted complaint under Article 6 para. 1

of the Convention concerning the length of the criminal proceedings.

A.    The applicant&_

32.     The applicant submits that he did not receive the reasons of

the judgment of the Regional Court, pronounced on 30 May 1984, until

25 months later, on 4 July 1986.  Section 270 para. 1 of the Austrian

Code of Criminal Procedure has thus not been complied with.  Moreover,

an essential part of the Court proceedings was therefore not

terminated within a reasonable time acording to Article 6 para. 1 of

the Convention.  In fact a breach of Section 270 para. 1 itself

constitutes a violation of the Convention when a time-limit is

exceeded which makes the delay in stating written reasons for the

judgment appear unreasonable as part of the overall length of the

proceedings.

33.     As regards the complexity of the present case, the Regional

Court actually investigated facts which had nothing to do with

the charges.  Moreover, the Government argue that the applicant's

conduct has to be seen, not in isolation, but in the context of the

offences committed by the other accused.  However, this ignores the

fact that, although 40 persons were involved in the preliminary

investigations, only three accused were left once proceedings against

a certain Mr.  T were discontinued who had been released from detention

on remand and then absconded.

34.     It is hard to assess, on the basis of the time schedule

supplied by the Government (see paras. 19 ff. above), the actual

workload of the judge concerned.  It is clear, however, that a series

of hearings lasting 10 - 30 minutes was held up to July 1985, whereas

the various proceedings in the "WBO-case" began in August 1985.  At

any rate, the judge's workload was not particularly heavy in early

1985.  Later she had a period of more than one year, during which

exemption from new cases and a clearly reduced workload would have

given her time to prepare the written reasons.  The judge's repeated

promises to the parties to prepare the written reasons clearly

indicate that she considered that this could be done.

35.     It has been argued that delays may be justified under the

Convention if the Courts are overburdened, and that the State cannot be

held responsible when a particularly heavy workload prevents a judge

from doing his work rapidly.  This overlooks that the State is

necessarily responsible for the conduct of its representatives,

particularly since it is not merely negligence by the judge in

question which is at issue.

36.     According to the schedule provided by the Government, the judge

in question was put in charge of the new economic crimes department

12 (b) of the Vienna Regional Court on 1 January 1985.  This means that

she was appointed at a time when the delay in preparing the written

reasons already lasted seven months and was thus exceptional to start

with (the first date promised by the judge to the defence counsel in

the case for the written reasons was October 1984).  Subsequently, and

although the case was particularly complex, nothing was done to help

the judge to conclude her work on the written judgment, for example by

granting her exemption from new cases.  On the contrary, she was given

additional work.

37.     As a result, the judge's workload was not excessively

increased by major cases until August 1985, when the reasonable time

for preparing the written reasons of the judgment had long since

expired.  The action taken to remedy this situation came too late and

to some extent, instead of decreasing, it actually increased the

workload of the judge who, although she had already fallen behind,

was given responsibility for a new department on 1 January 1985.

38.     It may well be that the President of the Court of Appeal filed

a disciplinary action against the judge in early November 1985.

However, it must be noted that the authorities waited one and a half

years before taking this action.  This makes it impossible to accept

that all possible measures were taken to expedite the preparation of

the written reasons of the judgment.  Disciplinary supervision clearly

had no effect.  The judge was insufficiently exempted from new cases

and she herself was relieved on 1 May 1986 as head of the economic

crimes department 12 (b) to which she had been appointed - clearly on

the basis of an inaccurate assessment of her workload and capacity for

work on 1 January 1985, at a time when the applicant had already been

waiting seven months for the written reasons.

39.     The applicant contends that, while in theory he still had to

be considered innocent, in fact he suffered considerable disadvantages

in respect of his economic situation and his honour on account of this

delay in the preparation of the written reasons.

40.     Thus, prior to judgment, the applicant was manager of the firm

which he is alleged to have defrauded in collusion with the chairman

of the board.  The firm did not participate as a private party in the

criminal proceedings against the applicant and took no disciplinary

action against him, but continued to employ him as it had before the

K-T company collapsed.  The relevant S.s of the firm do not

therefore regard the applicant as having caused them any damage,

which would have been necessary to make the applicant an

accessory to the misappropriation of funds.

41.     However, the fact that these accusations were made in a

judgment which was pronounced publicly caused the applicant

considerable damage since, quite apart from the merely human aspects

and the effects on his family's reputation, his employers have also

suspended him without pay until the case has been cleared up.  Even so

they have not chosen to dismiss the applicant without notice.  The

applicant has also had to suffer during this period of more than two

years all the disadvantages of being largely debarred from practising

his profession, since in practice the presumption of innocence by no

means applies to a person who has not been finally convicted and is

trying to work in business or the law.  This state of uncertainty,

which will last until the case has been finally decided, is clearly to

42.     If it is argued that the delay in the preparation of the

written reasons actually benefited the applicant since he did not

have to begin to serve his prison sentence, this obviously assumes

that the applicant will definitely be convicted and sentenced to

imprisonment.  However, such an assumption is contrary to the

presumption of innocence enshrined in Article 6 para. 2 of the

Convention.

43.     The applicant concludes that the undue length of the criminal

proceedings in which he was involved, in particular the delay in the

preparation of the written reasons of the judgment, constituted a

violation of Article 6 para. 1 of the Convention.

B.    The Government&_

44.     The respondent Government submit that, in accordance with the

constant practice of the Convention organs, the following criteria have

to be used to judge the appropriateness of the length of the criminal

proceedings:  the complexity of the case;  the applicant's conduct;

and the conduct of the competent authority.

45.     The present proceedings, instituted against the applicant and

other persons, involve economic offences and are based on very complex

and comprehensive facts.  In this regard, reference is made to the

great number of files, hearings and witnesses.  For instance, at the

time of the preparation of the written judgment, the case-file

included 81 files.  The trial was conducted over 55 hearings, and the

trial minutes extended to 7150 pages.  The objection raised by the

applicant, namely that within the framework of the prosecution against

himself investigations were carried out involving more than 40

persons, cannot disprove the argument of the complexity of the case.

Rather, the objection reflects the great variety of intricate business

implications which the competent judge had to review and to assess

within the framework of the proceedings instituted against the

applicant.  It is thus not possible to consider the conduct of the

applicant in isolation, as it is above all the context of the offences

committed by the other accused from which the illegality of the

applicant's conduct results.

46.     The conduct of the applicant may be disregarded in the present

case as he could not influence the motivation of the judgment.

47.     As regards the conduct of the competent authority, in

particular the judge who was preparing the written reasons of the

judgment, the Government have submitted for the period after the

judgment was pronounced publicly on 30 May 1984 a chart scheduling the

judge's workload (see paras. 19 ff. above).  In this respect reference

is made to the case-law of the European Court of Human Rights which has

decided that delays may be justified if the Courts become overburdened

by a sharp increase in business (Eur.  Court H.R., Guincho judgment of

10 July 1984, Series A no. 81, p. 16 paras. 37 f).  Such delays,

however, would have to be kept as short as possible by the State.

        In the present case, the judge concerned was exempted, as head

of department 3 (d), from new business until the end of 1984.  As head

of the new economic crimes department 12 (b) she was exempted from new

business not concerning the spectacular WBO-case from 5 March 1985

until 31 December 1985.  There was also a gradual reduction of work

for the department 20 (v).

48.     On the part of the competent supervisory authority, various

steps were taken in order to attain the preparation of the written

reasons of the judgment at issue.  In view of the extraordinary extent

of the proceedings and the fact that the supervisory panel ordered

that no new cases were to be referred to the head of department 3 (d),

the preparation of the written reasons of the judgment was initially

monitored only on the basis of the respective monthly reports.  Later

on, the motivation was checked in the course of an administrative

supervision procedure.  As the judge did not keep the deadlines set

for her, the President of the Court of Appeal filed a disciplinary

action against her in early November 1985.

        Furthermore, the supervisory panel decided on 21 April 1986 to

appoint as of 1 May 1986, until further notice, another judge as deputy

head of the economic crimes department 12 (b) in order to end the

delay in the preparation of the written reasons.  As a result, the

competent judge promised the written reasons by the end of June

1986.

49.     According to the European Court of Human Rights, delays will

not entail a State's responsibility if the latter takes immediate

appropriate remedial action (see judgment of Zimmermann and Steiner of

13 July 1983, Series A no. 66, p. 12 para. 29).  The Government submit

that in the present case the delay that has occurred is a result of

the complexity of the case and that the competent authorities took all

possible measures to expedite the preparation of the written reasons

of the judgment, for instance, exemption from new business; monitoring

by the supervisory authority;  filing a disciplinary action;  as well

as relieving the judge as head of the department 12 (b).

50.     However, considering the constitutionally ensured principle of

the independence of judges, guaranteed by the rules of irremovability

and intransferability, as well as the resulting principle of the fixed

allocation of business, delays may occur in the interest of the

certainty of law as long as, in exceptional cases, judges who do not

satisfy the requirements which they are expected to meet may be

transferred within the framework of disciplinary proceedings.  Another

judge can then be appointed as head of the department.

51.     Realistically speaking, there is always the possibility that a

certain judge is not able to cope with particularly complex

proceedings.  In such a case, however, the State can be made

responsible under the Convention only insofar as arrangements have to

be made that lead to the preparation of the written reasons.  In the

present case, this has been done as the above explanations show.

52.     The Government submit further that a violation of Section 270

para. 1 of the Code of Criminal Procedure cannot constitute a

violation of Article 6 para. 1 of the Convention.  Reference is made

in this respect to the case of Crociani and others which was based on

similar facts and, insofar as it concerns the present case, was

declared inadmissible by the European Commission of Human rights (Nos.

8603/79, 8722/79, 8723/79, 8729/79, Dec. 18.12.1980, D.R. 22 p. 147).

In another decision of the Commission it was stated that a violation

of Section 270 para. 1 of the Code of Criminal Procedure did not constitute

a violation of Article 6 para. 1 of the Convention, even if the

written reasons of the judgment were not available eight months after

its pronouncement (No. 4459/70, Dec. 3.4.71, Kaiser v.  Austria,

Collection 38 p. 44).

53.     Moreover, the applicant suffered no disadvantage from the fact

that the written reasons of the judgment were not prepared sooner.  At

the hearing of 30 May 1984, the decision was pronounced publicly and

an explanation of the essential underlying reasons was given.  There

existed then already a draft version of the judgment of some 80

pages.

54.      The applicant was already informed of the essentials of the

judgment.  The fact that the written reasons were served on him only

on 4 July 1986, implies that the applicant did not have to commence

serving his sentence of six years' imprisonment since the judgment had

not acquired legal force.  As a result, the applicant may rather have

enjoyed an advantage from the delay.

55.     The Government conclude that in the light of the above

considerations the present case does not entail a violation of Article

6 para. 1 of the Convention.

IV.   OPINION OF THE COMMISSION

A.    Point at issue&_

56.     The issue to be determined in the present application is

whether, in the criminal proceedings which have been instituted against

the applicant, his case was heard within a reasonable time, as

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

B.    Applicability of Article 6 para. 1 (Art. 6-1)&_

57.     Article 6 para. 1 (Art. 6-1), insofar as it is relevant, provides:

        "In the determination ... of any criminal charge against him,

        everyone is entitled to a ... hearing within a reasonable

        time ..."

58.     The applicability of this provision to the criminal

proceedings instituted against the applicant is not in dispute between

the parties.  The Commission notes that in these proceedings the

Courts concerned were determining criminal charges which had been

brought against the applicant.

C.    Issue of being a victim&_

59.     The applicant has submitted that the undue length of the

proceedings at issue, in particular the time required to prepare the

written reasons of the judgment, has caused him considerable

disadvantages in respect of his economic situation and his honour.  He

submits that he must be considered innocent until the conviction, if

any, has acquired legal force.  For this reason it cannot be

argued that the delay in the preparation of the written reasons

implied that he did not have to start serving his sentence earlier.

60.     The Government have submitted that the applicant suffered no

disadvantages from the fact that the written reasons of the judgment

were not prepared sooner.  Thus, at the hearing of 30 May 1984 the

decision was pronounced publicly and the applicant was in fact aware

of the essentials of the judgment.  The delay in the preparation of

the written reasons only implied that the applicant did not have to

commence serving his sentence of six years' imprisonment since the

judgment had not yet acquired legal force.  The Government conclude

that the applicant possibly rather enjoyed an advantage from the

delay.

61.     The Commission did not accept this objection when declaring

the application admissible.  In its opinion, the Government can be

understood as contending that the applicant cannot claim to be a victim in the

present case within the meaning of Article 25 para. 1 (Art. 25-1) of the

Convention, since he did not suffer any disadvantages.  Under Article 25 para.

1 (Art. 25-1) , "the Commission may receive petitions ... from any person ...

claiming to be the victim of a violation ... of the rights set forth in (the)

Convention".

62.     According to the constant case-law of the Convention organs,

the word "victim" in Article 25 (Art. 25) denotes the person directly affected

by the act or omission at issue, in the present case as a result of

the length of the proceedings.  In this respect a person can be considered

to be a "victim" even in the absence of prejudice, since the latter

is relevant only in the context of Article 50 (Art. 50) of the Convention

(see e.g.  Eur.Court H.R., Eckle judgment of 15 July 1982, Series A

no. 51, p. 30 para. 66; Artico judgment of 13 May 1980, Series A no. 37,

p. 15 f para 33).  In the present case, it is undeniable that the

applicant was directly affected by the duration of the proceedings in

question.  As a result, he can be considered a victim within the

meaning of Article 25 (Art. 25) of the Convention.

D.   Compliance with Article 6 para. 1 (Art. 6-1)&_

63.     The Commission must, therefore, examine the length of the

proceedings in this case according to the criteria established in the

case-law of the Convention organs.

1.      Period to be considered

64.     In establishing the actual length of the proceedings at issue,

it has first to be determined when the applicant was "charged" within

the meaning of Article 6 para. 1 (Art. 6-1).  According to the Commission's

constant case-law, a person is charged when his situation has been

substantially affected as a result of the suspicion against him (see

e.g.  No. 8130/78, H. and M. Eckle v. the Federal Republic of Germany,

D.R. 16, p. 120, 128).  In the present case, it is not in dispute

between the parties that criminal investigations were instituted

against the applicant on 21 May 1981.  It is therefore as from this

date that the period commenced which has to be examined under Article 6

para. 1 (Art. 6-1).

65.     As regards the end of the period, the terms "determination ...

of any criminal charge" mean its final determination.  The time to

be considered for the purpose of Article 6 para. 1 (Art. 6-1) thus covers in

principle the entirety of the proceedings, including the appeal

proceedings.  In the present case, the Supreme Court, on 30 January 1987,

quashed the judgment of the Regional Court and ordered a new trial and

decision by that Court.  The proceedings before the Regional Court

have been resumed and are currently pending.  The period to be considered under

Article 6 para. 1 (Art. 6-1) of the Convention therefore runs to the present

date.

66.     Accordingly, the proceedings have so far lasted approximately

six years and nine months.

67.     While it is always the entire span of the proceedings which it

must examine, the Commission observes that the main question of the

present case concerns the time required, by the competent judge at the

Vienna Regional Court, for the preparation of the written reasons of

the judgment pronounced on 30 May 1984.  These were eventually served

on the applicant on 4 July 1986.

68.     Accordingly, the time required in particular for the

preparation of the written reasons was two years, one month, and five

days.

2.      Relevant criteria

69.     The applicant has submitted that a breach of Section 270 para.

1 of the Austrian Code of Criminal Procedure may in itself constitute

a violation of the right at issue under Article 6 para. 1 (Art. 6-1) of the

Convention.  The Government have replied thereto by referring to the

Commission's case-law according to which even in delays exceeding the

period of two weeks stated in Section 270 para. 1 the Commission saw

no issue under the Convention (see No. 4459/70, Dec. 3.4.71, Kaiser v.

Austria, Collection 38 p. 44).

70.   The Commission recalls that, according to the constant case-law

of the Convention organs, the reasonableness of the length of the

proceedings has to be assessed in each case according to its

particular circumstances and having regard in particular to the

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

judicial authorities (see Eur.  Court H.R., Corigliano judgment,

ibid., p. 14 para. 37).

71.    Insofar as the applicant refers to the time-limit stated in

Section 270 para. 1 of the Code of Criminal Procedure, the Commission

considers that its assessment of the reasonableness of the length of

the proceedings cannot be made dependent on time-limits stipulated

under domestic law.

3.      Complexity of the case

72.     The applicant has called in question the complexity of the

case by pointing out that the Regional Court investigated facts which

had nothing to do with the charges brought against the applicant.

Moreover, while the preliminary investigations involved 40 persons,

only the applicant and two other persons were eventually brought to

trial.

73.     The Government have submitted that the present proceedings

involved economic offences which were based on very complex and

comprehensive facts.  It is pointed out, for instance, that at the

time of the preparation of the written judgment, the case-file

included 81 volumes.  The trial was conducted over 55 hearings and the

minutes extended to 7,150 pages.  There were also some 40 volumes of

expert opinions and other evidence.  Moreover, it was not possible to

consider the applicant's case in isolation, as it was above all the

context of the offences committed by the other accused from which the

illegality of the applicant's conduct resulted.

74.     The Commission here notes that the applicant was suspected,

together with a number of other persons, of having participated in the

offence of misappropriation of funds on the occasion of a

participation in the share capital increase of a company amounting to

32.2 million AS.  The applicant was further suspected of having

participated in the offence of extricating a loan of 25 million AS

from a bank.  The subsequent bill of indictment numbered 183 pages and

laid charges against the applicant as well as two co-accused.  The

trial was eventually conducted over 55 hearings.  During this period

of time, 120 witnesses were heard.

75.     In the Commission's opinion, this suffices to demonstrate that

the present case raised complex problems for the prosecuting and

investigating authorities as well as for the trial court.  This

complexity therefore accounts significantly for the duration of the

preliminary investigations and the trial before the Regional Court

until the pronouncement of the judgment on 30 May 1984.  The

complexity also accounts for the duration so far of the proceedings

presently pending before the Regional Court after the Supreme Court,

on 30 January 1987, quashed the Regional Court's judgment of 30 May 1984.

76.    Insofar as the competent judge of the Regional Court was

obliged to substantiate in writing the judgment given on 30 May 1984,

the Commission acknowledges that this task was arduous.  In

particular, it required consideration of, and constant reference to,

the voluminous materials.

77.    Nevertheless, once the judgment was pronounced, the judge

called upon to prepare the written reasons was no longer required to

undertake further investigations of the case.  As a result, the

complexity surrounding the investigations and the trial became less

relevant for the person preparing the written reasons of the judgment.

78.     The task of the judge concerned was therefore a complex one in

that it was detailed and laborious.  However, even a laborious task as

the one at issue could not, in the Commission's opinion, serve to justify,

under Article 6 para. 1 (Art. 6-1) of the Convention, the period of 25 months

until the written reasons were prepared.

4.      Conduct of the applicant

79.     It is not disputed by the parties that the delay complained of

concerning the preparation of the written reasons cannot be attributed

to the applicant.  Moreover, under Austrian law the applicant had no

means of expediting the proceedings (see No. 4459/70, Dec. 3.4.71,

Kaiser v.  Austria, Collection 38 p. 44).

5.      Conduct of the authorities

80.     The Commission observes that there is no dispute between the

parties as to the conduct of the authorities in respect of the length

of the proceedings leading to the judgment of the Regional Court of 30

May 1984, or the subsequent proceedings before the Supreme Court.  In

fact, after preliminary investigations were instituted against the

applicant on 21 May 1981, the Regional Court passed its judgment on 30

May 1984, i.e. approximately three years later.  After the applicant

filed his plea of nullity on 18 July 1986, the Supreme Court gave its

decision on 30 January 1987, i.e. approximately six months later.  The

Commission thus considers that during these periods the authorities

dealt with the case efficiently and speedily.

81.     As regards the time required to prepare the written reasons of

the judgment of 30 May 1984, the applicant has pointed out that,

according to the time-chart submitted by the Government, the judge

concerned was no longer heavily involved in hearings from early 1985

onwards.  Conversely, on 1 January 1985 the judge was given additional

work by being put in charge of the new economic crimes department 12

(b).  This was the result of an inaccurate assessment of her workload

since on 1 May 1986 she had to be relieved from her duties in this

department.  The action to remedy this situation, the applicant

further alleges, came too late, since the disciplinary action against

the judge was only filed in November 1985, i.e. 18 months after

judgment was pronounced.

        The applicant thus contests that all possible measures were

taken to expedite the preparation of the judgment and points out that,

at all stages, the State necessarily remains responsible for the

conduct of its representatives.

82.     The Government draw attention in particular to the fact that

as head of department 3 (d) the judge concerned was exempted from new

business until the end of 1984.  As from 1 January 1985 she was put in

charge of the new economic crimes department 12 (b), though from 5

March 1985 until 31 December 1985, in view of the WBO-case (para. 22

above), she was also exempted from new business not concerning this

case.  There was also a gradual reduction of work for department 20

(v).

        The Government further point out that the supervisory panel at

the Vienna Regional Court monitored the preparation of the written

reasons, initially on the basis of monthly reports, later in the

course of an administrative supervision procedure.  In November 1985,

a disciplinary action was filed against the judge, and as of 1 May

1987 the judge was relieved of her duties at the economic crimes

department 12 (b).

83.     The Government emphasise that the principle of the

independence of judges will occasionally cause delays.  If a judge is

not able to cope with particularly complex proceedings, the State can

be made responsible only insofar as no adequate arrangements have been

made to avoid undue delay.  The Government submit that in the present

case this has been done.

84.     The Commission however notes that according to Section 270 para. 1

of the Austrian Code of Criminal Procedure the judicial authorities

are obliged to prepare the written reasons of the judgment within 14

days of its pronouncement.  In this light there can be no doubt that

the judicial authorities were called upon to act quickly.

85.    It is true that according to the minutes of the hearing, when

judgment was pronounced, the applicant was also informed of its

essential underlying reasons (para. 17 above).  Nevertheless, the

Commission considers that the authorities were under an obligation to

conduct the proceedings speedily regardless of whether or not the

applicant was aware of the grounds of his conviction.  In particular,

the time required to prepare the written reasons was of direct

relevance to the applicant since it affected the length of the

proceedings.

86.    Thus, the judgment was given by a first instance court.

Thereafter, the applicant announced that he would file a plea of

nullity and an appeal.  The proceedings were therefore to be continued

before the Court of second instance and the delay in preparing the

judgment prolonged the proceedings as a whole.

87.     Having established that the judicial authorities were called

upon to conduct the proceedings speedily also at the stage between the

pronouncing of the oral judgment and the communication of the written

judgment, the Commission must now turn to an examination of the

conduct of the authorities during this phase of the proceedings.  It

recalls its considerations above that the laborious task of the judge

concerned could not in itself serve to justify the period of

twenty-five months until the written reasons of the judgment were

prepared (see para. 78).

88.     In this respect the Commission notes, first, the Government's

submissions according to which on 1 January 1985 the judge concerned

was appointed as head of a new economic crimes department and assigned

a voluminous new case together with a number of other cases.  The

Commission observes here that, eight months after judgment was

pronounced on 30 May 1984, the responsible authorities, rather than

relieving the judge of other tasks in order to expedite the

preparation of the decision, in fact assigned substantial further

duties to the judge.

89.     The Commission further notes that according to the

Government's submissions a disciplinary action was filed against the

judge in November 1985.  Moreover, as of 1 May 1986 the judge was

relieved of further duties in order to prepare the written reasons of

the judgment.  Here, the Commission notes that these measures

occurred only eighteen and twenty-three months, respectively, after the

judgment was pronounced on 30 May 1984, and were not therefore

undertaken with sufficient speed.

90.     At this stage the Commission recalls that it is nevertheless

not required to establish in detail whether an alleged violation is

imputable to any individual authority.  Under the terms of the

Convention, the High Contracting Parties are responsible for all their

organs.

        Moreover, the fundamental purpose of the Convention is to

provide for the protection of the rights of individuals.  The Convention organs

are thus required under Article 19 (Art. 19) of the Convention to guarantee

protection of these rights and not to establish whether any specific national

authority must be considered "guilty" (see Zimmermann and Steiner v.

Switzerland, Comm.  Report 9.3.82, Eur.  Court H.R., Series B No. 54, p. 20

para. 46;  Eur.  Court H.R., Foti and others judgment of 10 December 1982,

Series A No. 56, p. 21 para. 63).

91.     In the present case it suffices therefore to observe that the

Government have not, in the Commission's opinion, demonstrated that the

authorities acted with the necessary diligence and expedition, for

instance when organising the workload of the judge concerned, or in

speedily undertaking efficient supervisory measures.

92.    Consequently, the Commission finds that, as a result of the

delay for which the authorities must be held responsible, the

applicant did not get a hearing within a reasonable time as required

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

E.    Conclusion&_

93.     The Commission concludes by a unanimous vote that there has

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

applicant's case was not heard within a reasonable time.

Secretary to the Commission              President of the Commission

   (H.C. KRÜGER)                                 (C.A. NØRGAARD)

APPENDIX I

HISTORY OF PROCEEDINGS

Date                    Item

----------------------------------------------------------------------

2 May 1985              Introduction of the application

9 August 1985           Registration of the application

Examination of admissibility

21 October 1985         Rapporteur's request for information from the

                        Government

15 November 1985        Government's information

18 December 1985        Applicant's comments in reply

3 March 1986            Commission's deliberations and decision to

                        invite the Government to submit observations

                        on the admissibility and merits of the

                        application

20 May and              Government's observations

29 July 1986

6 June and              Applicant's observations in reply

11 August 1986

16 October 1986         Commission's deliberations and decision to

                        declare the application partly admissible

Examination of the merits

7 March, 11 July and    Commission's consideration of the state

12 December 1987        of proceedings

4 March 1988            Commission's deliberations on the merits

                        and final vote

10 March 1988           Adoption of the Report