Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23019/93

by E. L.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 5 May 1993 by

Mr. E. L. against Austria and registered on 19 November 1993 under file

No. 23019/93;

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

of Procedure of the Commission;

Having regard to the Commission's decision of 17 May 1995 to

communicate the application as regards the applicant's complaint

concerning the length of the criminal proceedings against him and to

declare the applicant's other complaints inadmissible;

Having regard to the observations submitted by the respondent

Government on 31 August 1995 and the observations in reply submitted

by the applicant on 15 October 1995 and the applicant's further

submissions of 8 November, 12 November, 16 November and

20 December 1995, 25 January, 9 February, 19 February, 21 February,

24 March, 17 April and 6 May 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1928, is an Austrian national residing in

Vienna.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be

summarised as follows.

On 6 September 1988 the Vienna Regional Criminal Court (Landes-

gericht für Strafsachen) opened preliminary investigations (Vorunter-

suchung) against the applicant. He was suspected of National Socialist

activities (Betätigung im nationalsozialistischen Sinne) within the

meaning of S. 3g of the National Socialism Prohibition Act (Verbots-

gesetz) in that he circulated documents denying the mass killings in

numerous concentration camps of the Third Reich. The proceedings were

joined to proceedings against a certain G.H. relating to similar

charges.

Also on 6 September 1988, the investigating judge (Untersuchungs-

richter) at the Regional Court ordered a search of the applicant's

premises, which was carried out on 15 September 1988 by officers of the

Vienna Federal Police Authority (Bundespolizeidirektion). A number of

documents were seized. On 14 October 1988 the Review Chamber

(Ratskammer) at the Vienna Regional Criminal Court dismissed the

applicant's complaint relating to the search of his premises.

Also on 6 September 1988 the investigating judge sent letters

rogatory to the embassy of the Soviet Union.

On 9 September 1988 the investigating judge sent letters rogatory

to the competent court in Canada where the original of the document at

issue was allegedly deposited.

On 23 September 1988 letters rogatory were sent to the embassy

of the United States of America.

On 7 November 1988 a witness was heard by way of legal assistance

by a court in Salzburg.

On 9 January 1989 letters rogatory were sent to Switzerland.

On 9 February 1989 the preliminary investigations against the

applicant were extended to include charges of forging documents

(Urkundenfälschung) and of having surreptitiously obtained an office

(Erschleichung eines Amtes).

On 7 March 1989 the Vienna Regional Criminal Court received the

minutes of the hearing of a witness from Switzerland.

On 16 March 1989 the investigating judge heard the applicant as

a suspect on the charges against him.

On 30 March 1989 the applicant complained about the opening of

the preliminary investigations against him. Subsequently, he also

complained about the extension of these investigations. On

15 November 1989 the Review Chamber at the Regional Court dismissed his

complaints.

On 2 August 1989 the Vienna Regional Criminal Court received the

minutes of a hearing of a witness by a Canadian court.

On 29 June 1990 the proceedings against the applicant and G.H.,

after they had apparently been joined to a further set of proceedings

against the latter, where separated again from these proceedings.

On 29 August 1990 the file was sent to the Vienna Regional Civil

Court in the context of related civil proceedings.

On 25 June 1991 the Vienna Regional Civil Court, following

several requests by the investigating judge, returned the file.

On 27 August 1991 further letters rogatory were sent to Canada.

On 10 September 1991 the Vienna Regional Criminal Court ordered

a psychiatric expert to file an opinion on the applicant's criminal

responsibility. On 27 November 1991 the Review Chamber at the Vienna

Regional Criminal Court dismissed the applicant's complaint. Later, the

said Court also ordered a second expert to file an opinion.

On 3 January 1992 the applicant, upon an order issued by the

investigating judge, was brought before the psychiatric experts.

However, he refused to be examined. Thereupon, both experts stated that

it was impossible to file an opinion.

On 21 January 1992 the President of the Vienna Regional Criminal

Court dismissed the applicant's motion, by which he had challenged the

investigating judge, the public prosecutor and the members of the

Review Chamber of the said Court for bias. This decision was confirmed

on 13 August 1992 by the Vienna Court of Appeal (Oberlandesgericht).

On 14 April 1992 the Vienna Court of Appeal dismissed the

applicant's further complaint against the opening of preliminary

investigations against him and his hierarchical complaint

(Aufsichtsbeschwerde) relating inter alia to his being brought before

the psychiatric experts.

On 3 June 1992 the investigating judge ordered that the documents

which had been seized in the course of the search of the applicant's

premises be returned to him.

On 11 May 1993 and on 18 August 1993 the Supreme Court (Oberster

Gerichtshof) rejected two appeals brought by the applicant as being

inadmissible. The Court noted that the applicant had relied on the

Fundamental Rights Complaints Act (Grundrechtsbeschwerde-Gesetz).

However, this Act only related to complaints about a deprivation of

liberty. The applicant had not made any submissions in this respect.

On 18 May 1993 the investigating judge again heard the applicant

as a suspect. In the course of the hearing the applicant brought a

motion challenging the judge for bias, which was, on 22 May 1992,

dismissed by the President of the Vienna Regional Criminal Court.

On 22 May 1993 the applicant challenged the entire Vienna

Regional Criminal Court for bias. Thereupon, the file was sent to the

Vienna Court of Appeal which, on 20 August 1993, dismissed the

applicant's motion.

On 9 September 1993 the file was sent to the Public Prosecutor

for the decision whether the preliminary investigations be discontinued

or the indictment be preferred.

On 9 May 1994 the Public Prosecutor's Office preferred the

indictment against the applicant. He was charged with National

Socialist activities within the meaning of S. 3g of the National

Socialism Prohibition Act for having circulated documents denying the

mass killings in numerous concentration camps of the Third Reich. The

investigations concerning charges of forging documents were

discontinued.

On 28 September 1994 the Vienna Court of Appeal dismissed the

applicant's objection against the indictment.

On 29 November 1994 the proceedings against the applicant were

separated from the proceedings against G.H.

On 5 December 1994 the file was sent to the presiding trial

judge.

On 19 June 1995 the applicant brought a motion to challenge the

presiding judge for bias.

The proceedings are still pending.

B. Relevant domestic law

S. 3g of the National Socialist Prohibition Act (Verbotsgesetz)

reads as follows:

"Whoever performs activities inspired by National Socialist ideas

in a manner not coming within the scope of Section 3a to 3f shall be

liable to punishment by a prison sentence between five and ten years,

and if the offender or his activity is particularly dangerous, by a

prison sentence of up to twenty years, unless the act is punishable

under a different provision stipulating a more serious sanction."

An amendment which entered into force on 20 March 1992, changed

the range of punishment from five to ten years to one to ten years.

COMPLAINTS

The applicant's remaining complaint concerns the length of the

criminal proceedings against him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 May 1993 and registered on

19 May 1993.

On 17 May 1995 the Commission decided to communicate the

applicant's complaint concerning the length of the criminal proceedings

against him to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure. The Commission declared the

remainder of the application inadmissible.

The Government's written observations were submitted on

31 August 1995. The applicant replied on 15 October 1995. He made

further submissions on 8 November, 12 November, 16 November and

20 December 1995, 25 January, 9 February, 19 February, 21 February,

24 March, 17 April and 6 May 1996.

THE LAW

The applicant complains that the criminal proceedings against him

lasted unreasonably long.

The Commission will examine this complaint under Article 6

para. 1 (Art. 6-1) of the Convention which, so far as relevant, reads

as follows:

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

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

The Government, referring to the case-law of the Convention

organs, submit that the investigations in the present case where

difficult, as they necessitated enquiries to be made in and requests

for legal assistance to be addressed to the United States, the former

USSR, Switzerland and Canada. Moreover, the Government argue that much

of the length of the proceedings was due to the applicant's conduct.

In particular, he submitted about 12,500 pages of requests for the

taking of evidence and appealed against almost every decision of the

court. Thus, the file had to be sent constantly to the appellate

courts. As the size of the file, which has at present thirty-five

volumes, rendered it impracticable to make a copy, it was impossible

to conduct the preliminary investigations speedily. Further delays were

caused by the applicant's various motions to disqualify judges.

The applicant contests the Government's view. He argues that the

duration of the criminal proceedings against him is in any case

unreasonable. He submits that hardly any investigations were carried

out in Austria and only one witness was heard. Thus, the volume of the

file was not a result of the activities of the Austrian authorities,

but was due to the fact that he submitted about 300 expert opinions in

his defense. Further, he argues that the Vienna Regional Criminal Court

in other cases with very voluminous files, was able to conduct the

investigations speedily.

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 authorities), and having regard to all the

information in its possession, that a thorough examination of this

complaint is required, both as to the law and as to the facts.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE the remainder of the application,

without prejudging the merits of the case.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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E.L. v. AUSTRIA

E.L. v. AUSTRIA

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