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RÖSSLHUBER v. AUSTRIA

Doc ref: 32869/96 • ECHR ID: 001-4322

Document date: July 2, 1998

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Cited paragraphs: 0
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RÖSSLHUBER v. AUSTRIA

Doc ref: 32869/96 • ECHR ID: 001-4322

Document date: July 2, 1998

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 32869/96

by Dietrich RÖSSLHUBER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 May 1996 by

Dietrich RÖSSLBAUER against Austria and registered on 4 September 1996

under file No. 32869/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows

THE FACTS

The applicant, born in 1940, is an Austrian national residing in

Salzburg. Before the Commission, the applicant is represented by

Mr Werner, a lawyer practising in Vienna.

The facts, as submitted by the applicant, may be summarised as

follows.

On 31 August 1989 the Salzburg Regional Court (Landesgericht

Salzburg) started preliminary criminal investigations against the

applicant and thirty other suspects on the suspicion of fraud and

breach of trust in the context of investments in a real estate fund.

On 31 January 1990 the Judges' Chamber (Ratskammer) at the

Salzburg Regional Court dismissed the applicant's appeal against the

opening of preliminary proceedings. On 14 March 1990 the Linz Court of

Appeal (Oberlandesgericht Linz) rejected the applicant's further

appeal.

On 4 August 1995 the Salzburg Public Prosecutor's Office

(Staatsanwaltschaft) preferred the indictment (Anklageschrift) of

441 pages against the applicant and eight of his co-accused.

On 7 November 1995 the Linz Court of Appeal dismissed the

objection raised by the applicant against the indictment.

On 25 March 1996 the trial was scheduled for 16 September 1996.

Thereupon, the applicant requested the postponement of the trial until

after 1 January 1999, in order to allow him to prepare his defence,

given the large volume of documents in the file. On 31 July 1996 the

Salzburg Regional Court dismissed the applicant's motion.

Since 16 September 1996 over 150 hearings have taken place before

the Court.

On 9 January 1998 the applicant was hospitalized to cure an

intestinal haemorrhage, and one of the hearings was conducted in a

meeting-room of the hospital.

The proceedings are still pending.

COMPLAINTS

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

about the criminal proceedings against him. He submits that the

proceedings already lasted over eight years and that no first instance

judgment has yet been given.

2. Furthermore, he complains under Article 6 that in the proceedings

concerning his indictment, no oral hearing was granted to him and that

he had to prepare his objection against the indictment within only two

weeks. Moreover, the applicant complains under Article 6 para. 3 (b)

that he did not have sufficient time to prepare his defence and that

he had only been informed of the accusations raised against him when

the indictment was preferred. He finally claims that, as the preferment

of the indictment occurred before the formal closing of the preliminary

proceedings, two separate proceedings were presently conducted against

him.

THE LAW

1. The applicant complains about the length of the criminal

proceedings against him. He invokes Article 6 para. 1 (Art. 6-1) of the

Convention.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of this complaint to the Government.

2. The applicant further complains under Article 6 (Art. 6) of the

Convention about the alleged unfairness of the proceedings concerned,

in particular that he did not have an oral hearing in the proceedings

to challenge the indictment and did not have sufficient time to prepare

his defence.

The Commission recalls that the question of whether a trial

conforms to the standards laid down in Article 6 (Art. 6) must be

decided on the basis of an evaluation of the trial in its entirety (cf.

No. 11058/84, Dec. 13.5.86, D.R. 47, p. 230 with further references).

It is true that it cannot be excluded that a specific factor may be so

decisive as to enable the fairness of the trial to be assessed at an

earlier stage in the proceedings (cf. Nos 8603/79, 8722/79, 8723/79 and

8729/79 joined, Dec. 18.12.80, D.R. 22, p. 216). However, the

Commission finds that the applicant failed to show any such specific

circumstances. In particular, the Commission considers that the

proceedings concerning the applicant's appeal against the opening of

the trial proceedings constituted a preliminary issue which can only

be examined in the context of the proceedings as a whole once they have

terminated. Accordingly, his complaints relating to the alleged

unfairness of the criminal proceedings against him which are still

pending before the Salzburg Regional Court are premature.

It follows that the remainder of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission

DECIDES TO ADJOURN the examination of the applicant's

complaint that the criminal proceedings against him lasted

unreasonably long and

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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