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 17 May 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 5 May 1993 by

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

No. 23019/95;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

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

Vienna.

A. Particular circumstances of the case

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.

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 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, in

which the indictment was preferred.

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 10 April 1992 the Vienna Court of Appeal dismissed the

applicant's hierarchical complaint (Aufsichtsbeschwerde) relating inter

alia to his being brought before the psychiatric experts. The Court of

Appeal noted that the applicant had twice refused to comply with the

first psychiatric expert's request to appear before him. Nevertheless,

the Regional Court should have issued a summons, warning the applicant

about the consequences of non-compliance, before actually ordering that

he be brought before the psychiatric experts. However, as the applicant

had refused to be examined, he had not suffered any prejudice and there

were, thus, no reasons to take measures of administrative review.

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 10 September 1993 the file was, according to the applicant,

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. On

28 September 1994 the Vienna Court of Appeal dismissed the applicant's

objection against the indictment.

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 complains about various aspects of the criminal

proceedings against him. He submits in particular that these

proceedings constituted inhuman treatment, that he has unlawfully been

deprived of his liberty, that the preliminary investigations against

him lasted unreasonably long and that the proceedings were unfair. He

further submits that the National Socialism Prohibition Act had not

been duly published and was unconstitutional, that the search of his

premises was unnecessary, that his right to freedom of thought and to

freedom of expression was infringed. He also complains that the

Austrian Courts did not deal with his complaints relating to these

alleged violations and that he was discriminated against. Finally, he

complains that his right to property was violated by the seizure of

documents and that he was prosecuted twice on account of the same

issue. In this context he argues that the preliminary investigations

against him were discontinued in 1990 and were subsequently reopened.

He invokes Articles 2, 3, 5 paras. 1, 3 and 5, Article 6

paras. 1, 2 and 3 (a) and (d), Articles 7 to 10 and Articles 13, 14

and 18 of the Convention, as well as Article 1 of Protocol No. 1 and

Article 4 of Protocol No. 7.

THE LAW

1. The applicant complains about the length of the criminal

proceedings against him.

The Commission notes that preliminary investigations against the

applicant were opened in September 1988 and the proceedings are still

pending.

The Commission, having examined the above complaint under

Article 6 (Art. 6) of the Convention, considers it cannot, on the basis

of the file, determine the admissibility of this complaint and that it

is therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of this complaint to the Government.

2. The Commission has examined the applicant's further complaints

as they have been submitted by him. However, the Commission finds that,

insofar as these matters have been substantiated and are within its

competence, they do not disclose any appearance of a violation of the

rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be rejected in

accordance with Article 27 (Art. 27) of the Convention.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN the examination of the applicant's complaint

about the length of the criminal proceedings against him;

DECLARES INADMISSIBLE the remainder of the application.

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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