Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16906/90

by Gert LAGLER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 5 April 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. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 3 July 1990 by

Gert LAGLER against Austria and registered on 20 July 1990 under file

No. 16906/90;

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

of Procedure of the Commission;

- the Commission's decision of 13 February 1992 to communicate the

application;

- the observations submitted by the respondent Government on

23 September 1992 and the observations in reply submitted by the

applicant, after expiry of the time limit, on 20 April 1994;

- the Government's supplemental comments of 26 May 1994 and the

applicant's supplemental comments of 14 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1949. He lives in

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

parties, may be summarised as follows.

The applicant was arrested on 20 April 1982 in connection with

various charges of commercial impropriety. He was detained on remand

until 18 June 1982.

On 24 September 1984 a formal indictment was brought, accusing

the applicant of negligent insolvency. On 10 October 1984 other

charges of commercial impropriety were dropped.

On 30 March 1989 the proceedings were adjourned. On 3 May 1989

the prosecution requested a third accountant's report in the case, a

request which the court granted on 5 June 1989. On 27 October 1989 the

prosecution requested the bringing of criminal proceedings against the

applicant for interference with documents relevant to the proceedings.

The expert who had been appointed on 5 June 1989 was removed on

16 August 1990 due to delays in preparing his opinion, and a further

expert was appointed on 3 September 1990. That expert informed the

court that he was overworked, and a further expert was appointed on

25 September 1990. That expert reported to the court on

30 October 1991, after having made several interim reports and having

complained that the applicant did not co-operate.

On 20 March 1992 the court issued a search warrant against the

applicant. The applicant's home and office premises were searched on

10 April 1992 and documents were seized. The premises of an adviser

of the applicant were also searched. Appeals against the searches were

unsuccessful.

The applicant's trial was due to take place on 29 October 1993.

Immediately before it, he submitted over 1,000 pages of documentation.

It transpired in the course of the hearing that the applicant's

representative was not fully aware of the contents of the

documentation, and the applicant alleged, for the first time, that at

the time of the events in question, he was not responsible for this

actions. The proceedings were adjourned for the preparation of a

psychiatric report on the applicant.

The psychiatric report has not been submitted, and the

proceedings remain adjourned.

COMPLAINTS

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

Convention by reason of the length of the proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 July 1990 and registered on

20 July 1990.

On 13 February 1992 the Commission decided to communicate the

application to the respondent Government for observations on its

admissibility and merits. The Government submitted their observations

on 23 September 1992.

On 20 April 1994, after an extension of the time-limit for

submitting his observations and a refusal to grant a further extension

which was requested out of time, the applicant submitted his

observations in reply.

The Government responded on 26 May 1994, and the applicant made

yet further submissions on 14 February 1995.

THE LAW

The applicant alleges violation of Article 6 para. 1

(Art. 6-1) of the Convention by virtue of the length of the

proceedings. The provision provides, so far as relevant, as follows.

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

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

time ..."

The Government accept that the requirements of Article 26

(Art. 26) of the Convention are met, but consider that the proceedings

against the applicant were extremely complex and difficult by virtue

of the way in which the applicant had run his businesses, and experts

have had to establish when the applicant did or should have become

aware of his firms' insolvency. They have submitted a chronology which

shows that there was no single period in which nothing happened, and

that the proceedings against the applicant were not suspended. They

point out that the authorities have tried to grant the applicant time

to complete his book-keeping, and state that the ensuing delays cannot

be ascribed to the Government. Whilst accepting that a defendant in

criminal cases is not required to co-operate with the authorities, they

underline that the applicant has made numerous attempts to delay the

proceedings and they point, for example, to his submission of 1,000

pages of documents just before the trial began on 29 October 1993.

The applicant, in his observations submitted on 20 April 1994,

made extensive comments on the conduct of the proceedings, but not on

the Government's observations. In his unsolicited observations of

14 February 1995, he denies that the proceedings are complex, and

considers that the length is due to the experts' unhelpful reports.

He regards the Government's observations as tendentious and partially

wrong. He considers that the length of the proceedings has ruined him

financially, physically and mentally.

The Commission considers, in the light of the criteria

established by the case-law of the Convention institutions of the

question of "in 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 as to 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)

Menu

LAGLER v. AUSTRIA

LAGLER v. AUSTRIA

LEXI