Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21024/92

by Ernst VOLKERT

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 27 June 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 2 September 1992

by Ernst VOLKERT against Austria and registered on 2 December 1992

under file No. 21024/92;

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 communicate the

application;

- the observations submitted by the respondent Government on

23 February 1994 and the observations in reply submitted by the

applicant on 11 October 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1945 and living in

Vienna.

He is represented by Mr. K. Bernhauser, a lawyer practising in

Vienna.

On 10 May 1982 the applicant represented by counsel,

Mr. G. Zanger, a lawyer in Vienna, wrote to the Public Prosecution at

Vienna Regional Court (Landesgericht) accusing himself of negligent

bankruptcy (fahrlässige Krida). At the same time he made a request to

the Vienna Regional Court for composition proceedings

(Ausgleichsantrag). On 9 July 1982 the investigating judge at the

Vienna Regional Criminal Court decided to institute preliminary

investigations and summoned the applicant for 27 July 1982, who,

despite being duly summoned, did not present himself.

On 22 February 1985 the Public Prosecution filed an indictment

against the applicant and a certain SCH. accusing SCH. of counts of

negligent and fraudulent bankruptcy and of other economic offences and

the applicant of negligent bankruptcy. According to the indictment,

received by the trial court on 27 March 1985, SCH. was the responsible

manager of the SCH. Ltd. company and the applicant responsible manager

of the V. Ltd. company. SCH. and the applicant as well as their

companies worked closely together. The two managers were considered

to be responsible for the financial breakdown of their companies

causing losses to the companies' creditors in the amount of AS 10.5

million in the case of the SCH. company and 23.5 million in the case

of the V. company. The applicant was inter alia accused of having

between 1980 and 11 May 1982 increased the debts of his company by at

least AS 1.4 million knowing that the company was insolvent and of

having suppressed the companies's accounts. In addition the applicant

had increased his own insolvency by offering security for debts of the

SCH. company.

According to the indictment SCH. had in June 1982 absconded, and

returned to Austria in 1984. He could first be interrogated by the

police for economic crimes in August 1984.

A first hearing took place on 26 August 1985 and the case was

adjourned sine die for the purpose of the preparation of an expert

opinion.

On 7 August 1986 the expert opinion was submitted and on

8 August 1986 was sent to the Public Prosecution for their

observations.

On 23 January 1987 the presiding judge decided to join the

proceedings against one M.G. with the pending proceedings.

On 20 April 1987, the Public Prosecution submitted further

results of investigations carried out by the police for economic crimes

on 27 January 1987.

On 30 April 1987 the presiding judge requested that the complete

files be submitted to him.

On 27 July 1988 he fixed the trial hearing to take place on

8 August 1988.

At the hearing of 8 August 1988 the co-accused SCH. and M.G. and

two witnesses were heard while the applicant was absent.

A further hearing was fixed for 5 September 1988 and had to be

postponed because of the absence of a lay judge.

On 5 September 1988 the Public Prosecution informed the Vienna

Regional Court that it intended to modify and extend the indictment as

continued investigations brought to light further objectionable

business transactions.

On 15 September 1988 the trial continued and the applicant as

well as three witnesses were heard. The indictment was modified and

extended.

On 15 September 1988 another hearing was held. The indictment

was extended. The applicant was convicted by the Vienna Regional Court

on seven counts of negligent bankruptcy, one count of aggravated fraud

(schwerer Betrug) and two counts of fraudulent bankruptcy. The

objectionable business transactions were according to the court carried

out in the applicant's case between October 1979 and May 1984 in

respect of negligent bankruptcy, in January 1982 in respect of the

aggravated fraud and between April 1982 and May 1984 in respect of a

count of fraudulent bankruptcy and aggravated fraud. The judgment

which inter alia describes the business transactions in question

comprises 75 pages. The judgment was served on the applicant's lawyer

on 2 May 1989.

SCH. and co-accused M.G. were convicted of similar offences, SCH.

was acquitted on one count of fraudulent bankruptcy.

The applicant was sentenced to 30 months' imprisonment. In

respect of part of the sentence (20 months imprisonment) the applicant

was granted a 3 year period of probation. On 17 May 1989 the applicant

lodged an appeal as to the sentence and a plea of nullity. The latter

remedy was partly granted by the Supreme Court (Oberster Gerichtshof)

which on 20 March 1990 in part confirmed the judgment appealed from but

sent the case back for a new trial in the respect of one count of

aggravated fraud and consequently for a new determination of the

sentence.

On 5 November 1991 the applicant and the co-accused M.G. were

acquitted on one count of aggravated fraud but he was given an

additional sentence of 23 months and 5 days imprisonment for the

offenses with regard to which the Supreme Court had confirmed the

applicants' culpability. In fixing the sentence the court had regard

to another conviction pronounced by the Regional Court in Klagenfurt

on 17 January 1990 imposing a fine for causing wilful damage to

property. The court considered that the additional sentence was

necessary in view of the especially high amount of damages caused by

the applicant. Taking into account that the applicant had admitted the

offenses and had not committed any criminal acts since May 1984 the

court considered that the execution of the total of the sentence could

be stayed on probation.

On 8 April 1992 the Vienna Court of Appeal following an appeal

lodged by the Public Prosecution amended the sentence to 27 months and

5 days imprisonment granting a period of probation of 2 years with

regard to twenty months of this sentence. This court considered that

the fact that the applicant had not committed further offences during

a rather lengthy period of proceedings was outweighed by the long

periods over which the objectionable business transactions were carried

out. Therefore the court considered it unjustified to grant a period

of probation with regard to the total of the sentence.

COMPLAINTS

The applicant considers that the criminal proceedings against him

were excessively long taking into account that he laid charges against

himself already in 1982.

THE LAW

The applicant's complaint concerns the length of proceedings at

issue. According to the applicant, the length of proceedings is

incompatible with the "reasonable time" requirement (Article 6 para. 1

(Art. 6-1) of the Convention). The Government dispute this argument.

The period to be considered in the present case may be considered

to have started on 9 July 1982 when the investigating judge summoned

the suspects. It ended on 8 April 1992 when the Vienna Court of Appeal

amended the sentence imposed on the applicant by the trial court.

The Commission notes that the proceedings lasted nearly ten

years, a very substantial period. It therefore considers that, in the

light of the criteria established by the case-law of the Convention

organs in respect of "reasonable time" (complexity of the case, conduct

of the applicant and of the competent authorities), and having regard

to all the information in its possession, this complaint requires

examination of the merits.

For these reasons, the Commission, unanimously,

DECLARES 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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VOLKERT v. AUSTRIA

VOLKERT v. AUSTRIA

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