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LÖFFLER v. AUSTRIA

Doc ref: 30546/96 • ECHR ID: 001-3875

Document date: September 10, 1997

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LÖFFLER v. AUSTRIA

Doc ref: 30546/96 • ECHR ID: 001-3875

Document date: September 10, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 30546/96

by Hans-Peter LÖFFLER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 12 January 1996

by Hans-Peter LÖFFLER against Austria and registered on 22 March 1996

under file No. 30546/96;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

18 November 1996 and the observations in reply submitted by the

applicant on 9 January 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1944 and residing

in Linz. In the proceedings before the Commission he is represented

by Mr. R. Gabl, a lawyer practising in Linz.

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

On 11 April 1986 preliminary investigations on the suspicion of

murder were instituted against the applicant.

On 31 March 1987 a Court of Assizes (Geschworenengericht) at the

Linz Regional Court (Landesgericht) convicted the applicant of murder

and sentenced him to eighteen years' imprisonment.

On 15 September 1987 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's plea of nullity and appeal against the

sentence.

On 6 September 1990 the applicant requested the reopening of the

criminal proceedings against him.

On 11 December 1991 the Linz Regional Court dismissed the

applicant's request.

On 15 June 1992 the Linz Court of Appeal (Oberlandesgericht)

granted the applicant's appeal and reopened the criminal proceedings

against him. At the same time the applicant was released.

On 23 August 1993 the Linz Public Prosecutor's Office filed a

bill of indictment charging the applicant with murder.

On 7 October 1993 the Linz Court of Appeal granted the

applicant's objections against the bill of indictment.

On 30 May 1994 the Public Prosecutor's Office filed a new bill

of indictment against the applicant.

On 9 September 1994 the Court of Appeal dismissed the applicant's

objections against the bill of indictment.

On 6 February 1995 the Supreme Court dismissed the request by the

Linz Regional Court to transfer jurisdiction in the case to a court in

Vienna.

On 3 April 1995 the applicant filed a request under Section 91

of the Courts Organisation Act (Gerichtsorganisationsgesetz) with the

Linz Court of Appeal. He complained about the inactivity of the

Regional Court and requested the Court of Appeal to order the Regional

Court to fix a date for the trial.

On 24 May 1995 the Court of Appeal refused the above request.

The Court of Appeal found that the Regional Court had to wait for

further expert opinions concerning a DNA test of hair and skin parts

which had been found on the victim and his clothes.

On 30 October 1995 the DNA test results were transmitted to the

court.

On 12 February 1996 the Presiding Judge of the Court of Assizes

at the Regional Court fixed the date of the applicant's trial for

19 August 1996.

The applicant's trial commenced on 19 August 1996 and finished

on 29 August 1996. On 29 August 1996 the Court of Assizes acquitted

the applicant.

COMPLAINTS

The applicant complains under Article 6 of the Convention about

the length of the reopened criminal proceedings against him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 January 1996 and registered

on 22 March 1996.

On 4 September 1996 the Commission decided to communicate the

application.

The Government's written observations were submitted on

18 November 1996. The applicant replied on 9 January 1997.

THE LAW

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

Convention about the length of the reopened criminal proceedings

against him.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads as follows:

"1. In the determination of ... any criminal charge against

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

time ..."

The Government submit that criminal proceedings against the

applicant have been rather complex. After the re-opening had been

granted it took some time until the former main incriminating witness

could be traced, as she had meanwhile moved to the United States.

Furthermore, in order to clarify the case complicated reports by

scientific experts had to be obtained. Having regard to these elements

the proceedings were conducted within a reasonable time.

This is disputed by the applicant. He submits that the

proceedings have been conducted in a rather slow manner. After the re-

opening had been granted, no extensive investigations had been

necessary in order to trace the former incriminating witness, as can

be seen from the fact that already in March 1993 she had given evidence

before the Investigating Judge. Nevertheless the proceedings did not

progress. After the bill of indictment had become final on 9 September

1994, it took some further two years before the trial started. This

could not be explained by the necessity to obtain further expert

opinions. On the one hand the expert report could have been requested

much earlier. On the other hand the expert had completed his report

in August 1995, while the trial only started in August 1996.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time" (the complexity of the case, the applicant's

conduct and that of the competent authorities), and having regard to

all the information in its possession, that an examination of the

merits of the application is required.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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