Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25062/94

by Gerd HONSIK

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 27 February 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

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 12 August 1994 by

Gerd HONSIK against Austria and registered on 1 September 1994 under

file No. 25062/94;

Having regard to:

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

the Commission;

- the Commission's decision of 18 October 1995 to declare the

application partly inadmissible and to communicate the remainder

of the application to the respondent Government for observations

on its admissibility and merits;

- the observations submitted by the respondent Government on

17 January 1996 and the observations in reply submitted by the

applicant on 15 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1941 and residing

in Königstetten. He is a writer and editor of various periodicals.

Before the Commission he is represented by Mr. H. Schaller, a lawyer

practising in Traiskirchen (Austria).

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

parties, may be summarised as follows.

On 16 December 1986 the Investigating Judge of the Vienna

Regional Court (Landesgericht) instituted preliminary investigations

(Voruntersuchung) against the applicant on the suspicion that articles

written, published and distributed by the applicant in his periodical

"Halt" constituted National Socialist activities within the meaning of

the National Socialist Prohibition Act (Verbotsgesetz). The

investigations related to articles which denied the existence of gas

chambers in concentration camps under the National Socialist regime and

mass extermination therein. The Investigating Judge also appointed a

medical expert, J.M., to prepare a report on the effects of toxic gas

and its use for killing people.

On 28 January 1987 the Investigating Judge appointed an expert

on contemporary history, G.J., to prepare a report on the existence of

gas chambers in concentration camps under the National Socialist regime

and their use for mass extermination.

On 4 September 1987 the Investigating Judge instructed the expert

Prof. G.J. to confine his report to the Auschwitz concentration camp.

Subsequently the Investigating Judge urged on several occasions

the expert to submit his report to the court. In February 1988 the

expert G.J. informed the Investigating Judge that he could not complete

his report before autumn 1988. In January 1989 he postponed this date

to summer 1989 and in November 1989 he informed the court that he could

no longer state when the report would be ready.

On 7 November 1989 the Investigating Judge asked the medical

expert J.M. when his report would be ready. On 10 November 1989 the

expert replied that he had thought that his report would no longer be

required. In any event, he could not accept the appointment because

of his work-load.

On 11 December 1989 G.J. informed the Investigating Judge that

he hoped to complete the report before the end of 1989. No report was

received by the court at that date.

On 12 June 1990 the Vienna Public Prosecutor's Office

(Staatsanwaltschaft) preferred a bill of indictment against the

applicant.

On 19 September 1990 the Vienna Court of Appeal

(Oberlandesgericht) dismissed the applicant's objection (Einspruch)

against the bill of indictment.

In December 1990 the Presiding Judge of the Vienna Court of

Assizes (Geschwornengericht) at the Vienna Regional Court

(Landesgericht), before which the trial of the applicant was to take

place, urged the expert G.J. to submit his report.

On 10 January 1991 the expert G.J. submitted an interim report

explaining what research he had carried out meanwhile.

On 31 March 1992 Mr. Schaller was appointed ex officio counsel

for the applicant.

On 22 April 1992 the defence submitted an extensive request for

the taking of evidence relating to the existence of gas chambers in

concentration camps.

On 27 April 1992 the trial of the applicant commenced. Further

hearings were held on 28, 29 and 30 April and 4 and 5 May 1992. On 29

and 30 April 1992 the expert Prof G.J. presented his report orally.

He concluded that in the Auschwitz-Birkenau concentration camp at least

several hundred thousand persons were killed, a considerable part of

them by use of toxic gas.

On 5 May 1992 the Court of Assizes convicted the applicant.

Having regard to previous convictions it sentenced the applicant to an

additional term of imprisonment (Zusatzstrafe) of one year, six months

and ten days.

On 12 October 1992 the applicant lodged a plea of nullity and an

appeal against the sentence. On 5 January 1993 the Procurator General

(Generalprokurator) submitted his observations on the applicant's

appeal and plea of nullity. On 28 May, 17 November, 22 November 1993,

8 February and 11 February 1994 the defence replied to the Procurator

General's observations.

On 16 February 1994 the Supreme Court dismissed the applicant's

plea of nullity. It found that the Court of Assizes had acted

correctly when it refused to take the evidence proposed by the

applicant. It referred in this respect to its previous case-law

according to which the existence of gas chambers in concentration camps

and the systematic mass exterminations which had occurred there were

facts of common knowledge in regard to which evidence need not be

taken. Furthermore it had constantly held that the denial of these

historic facts and the discrediting of reports thereof as false

propaganda constituted in itself an offence under the National

Socialism Prohibition Act. As regards the applicant's appeal against

sentence, the Supreme Court noted that the applicant was of unknown

abode. Once the applicant had been found the case would be remitted

to the Court of Appeal to decide on the appeal against the sentence.

COMPLAINTS

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

that the proceedings have not been conducted within a reasonable time.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 August 1994 and registered

on 1 September 1994.

On 18 October 1995 the Commission decided to communicate the

applicant's complaint about the length of the criminal proceedings

against him and declared inadmissible the remainder of the application.

The Government's written observations were submitted on

17 January 1996. The applicant replied on 15 April 1996.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the proceedings have not been conducted within a

reasonable time.

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

material to the case, read as follows:

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

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

time by an independent and impartial tribunal established by law

...."

The Government submit that the case was particularly complex as

it necessitated the preparing of an expert opinion in the field of

contemporary history on a very complicated issue, namely mass

extermination of Jews by the Nazi regime and the existence of gas

chambers. Such an expert report was necessary in order to refute

arguments advanced by so-called "revisionist" historians. The expert

appointed, Prof. G.J., had to examine numerous documents on this

question which in the course of time had been dispersed over various

archives throughout the world, and in particular to examine documents

in archives which had only recently become accessible. These

circumstances considerably prolonged the fulfilment of his task.

However, the courts themselves had dealt rather expeditiously with the

applicant's case. The Regional Court repeatedly urged the expert to

deliver his report and monitored the progress of his research. Having

regard to the particular circumstances of the case the Government find

that the criminal proceedings against the applicant have been conducted

within a reasonable time as required by Article 6 para. 1 (Art. 6-1)

of the Convention. The fact that no decision has yet been taken by the

Court of Appeal on the applicant's appeal against the sentence is

entirely the applicant's fault as he had absconded shortly after the

Supreme Court had dismissed his plea of nullity.

This is disputed by the applicant. In his view the proceedings

at issue had not been complex. The applicant himself refers to the

Supreme Court's case law according to which the existence of gas

chambers in concentration camps and the systematic mass exterminations

which had occurred there were facts of common knowledge in regard to

which evidence need not be taken. The applicant emphasizes that it had

taken the expert years to prepare his report and even when the trial

took place he had not even finished his written report but had to give

his expert opinion orally. The Austrian courts failed to take

sufficient steps in order to accelerate the proceedings. As early as

1989 it had been clear that the expert would not be able to deliver his

report in due time and he should therefore have been replaced.

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 this complaint is required.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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HONSIK v. AUSTRIA

HONSIK v. AUSTRIA