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AS TO THE ADMISSIBILITY OF

Application No. 20178/92

by Franz HENGL

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 15 January 1992

by Franz HENGL against Austria and registered on 17 June 1992 under

file No. 20178/92;

Having regard to:

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

the Commission;

- the Commission's decision of 1 December 1993 to declare the

application partly inadmissible and to communicate the remainder

to the respondent Government for observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

31 March 1994 and the observations in reply submitted by the

applicant on 8 June 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1940. He is

represented before the Commission by Dr. W. Blaschitz, a lawyer

practising in Vienna. The facts of the case, as submitted by the

parties, may be summarised as follows.

Criminal proceedings were opened against the applicant on

10 September 1982 under file number 12 Vr 9703/82. The formal

preliminary investigation began on 12 June 1986. In the indictment of

12 August 1988 the applicant was accused of various fraud offences

committed between 1980 and 1986. He was later also accused of

threatening, amongst others, a legal aid lawyer.

From 2 July 1986 until 30 June 1987 the applicant was in

detention on remand. He was released because the Vienna Court of

Appeal (Oberlandesgericht) refused to extend the permitted period of

detention in that, given the complexity of the case, it was unlikely

that the indictment and trial would be in the foreseeable future.

On 2 June 1987 the applicant's privately employed lawyer was

questioned by the Vienna Regional Court as to some AS 1,000,000 which

had been deposited with him by the applicant in 1984, before the lawyer

had been representing the applicant. The lawyer gave information as

to how and when he had received the sum, but declined, by reference to

Article 153 of the Code of Criminal Procedure (Strafprozeßordnung), to

give information as to smaller sums (of some AS 100,000) which the

lawyer had received. Article 153 of the Code of Criminal Procedure

provides for a limited right for witnesses to refuse to give evidence

when they run the risk of criminal proceedings or direct financial

disadvantage.

On 5 June 1987 the Review Chamber (Ratskammer) of the Regional

Court excluded the lawyer from further representing the applicant. The

Chamber relied on Article 40 para. 1 of the Code of Criminal Procedure

which prohibits representation by persons who have been summoned as

witnesses in the trial, and states that the Review Chamber shall

determine whether persons who have been have heard as witnesses at an

earlier stage should be excluded from representation. The Review

Chamber noted that the lawyer had declined to answer certain questions

by reference to Article 153 of the Code of Criminal Procedure, and

found that there was a risk of a conflict of interests. Accordingly,

the lawyer was excluded. The applicant's appeal against the decision

of 5 June 1987 was rejected by the Vienna Court of Appeal

(Oberlandesgericht) on 6 December 1988 on the ground that such

decisions of the Review Chamber could not be appealed.

On 31 January 1990 the trial (Hauptverhandlung) was opened. The

applicant was in hospital. On 9 February 1990 the President of the

Regional Court ordered the applicant's detention on remand

(Untersuchungshaft) on the ground that there was a risk that he would

abscond and that he would commit criminal offences. The Review Chamber

rejected his appeal against this decision on 28 February. On

21 February the Regional Court had refused an application for release

(Enthaftungsantrag). On 20 March 1990 the Vienna Court of Appeal

rejected the applicant's complaints (Beschwerden) against the decisions

of 21 and 28 February.

The applicant was convicted on 18 May 1990 after a 24-day trial

and sentenced to a six years' prison sentence. The Regional Court

ordered that he should remain in detention on remand. The applicant's

complaint against the remand order was rejected by the Court of Appeal

on 21 June 1990.

The applicant's plea of nullity was rejected in part by the

Supreme Court on 19 September 1991. On 17 October 1991 the Supreme

Court dealt, in a public hearing, with the remainder of the plea of

nullity and with the applicant's appeal against sentence. It accepted

the plea of nullity in part and remitted the question of sentence in

respect of part of the conviction to the Regional Court. The remainder

of the plea of nullity was rejected, and the prison sentence reduced

to five and a half years.

The judgment of the Supreme Court was received by the applicant's

representative on 30 January 1992.

COMPLAINT

The applicant alleges a violation of Article 6 para. 1 of the

Convention. He considers that the proceedings, which began in 1982,

lasted an unreasonable time within the meaning of Article 6 para. 1 of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 January 1992 and registered

on 17 June 1992.

On 1 December 1993 the Commission decided to declare the

application partly inadmissible and to communicate the remainder to the

respondent Government for observations on its admissibility and merits.

The Government's written observations were submitted on

31 March 1994, after an extension of the time-limit. The applicant

replied on 8 June 1994.

THE LAW

The applicant alleges that the length of the proceedings exceeded

the "reasonable time" prescribed by Article 6 para. 1 (Art. 6-1) of the

Convention.

The Commission notes that the proceedings against the applicant

were opened in 1982. The applicant's representative received the

judgment of the Supreme Court on 30 January 1992.

The parties are in agreement that the proceedings began in

September 1982, and that they ended with the Supreme Court's judgment

of 17 October 1991, which was served on the applicant's representative

on 30 January 1992. The applicant considers that the period exceeded

the "reasonable time" requirement of Article 6 (Art. 6) of the

Convention. The Government consider that there were no standstill or

avoidable delays in the proceedings, and point out that the proceedings

were particularly complex in that there was an extensive network

relationships which had to be investigated in the course of the

economic offences alleged, with 110 private parties, 180 witnesses

before the investigating judge and a file running to 24 volumes plus

annexes at the date of the indictment (including one expert's report

which had a total of 2,432 pages). They also note that the applicant

had an interest in procrastinating as much as possible, and cite as one

example the applicant's absence from the beginning of the trial.

The Commission considers, in the light of the criteria

established by the case-law of the Convention institutions 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 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 THE REMAINDER OF THE APPLICATION ADMISSIBLE,

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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HENGL v. AUSTRIA

HENGL v. AUSTRIA

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