Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21613/93

by Laszlo THURZO

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 22 February 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

B. MARXER

B. CONFORTI

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 February 1993

by Laszlo Thurzo against Austria and registered on 2 April 1993 under

file No. 21613/93;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 22 September 1994, after an extension of time-limit, and

the observations in reply submitted by the applicant on 7 October 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

parties, may be summarised as follows:

The applicant, born in 1950, is an Austrian national residing in

Vienna. Before the Commission, he is represented by Mr. K. Bernhauser,

a lawyer practising in Vienna.

On 12 August 1986 the Vienna Police Directorate (Bundes-

polizeidirektion) questioned the applicant in connection with

investigations concerning a series of fraud cases committed to the

disadvantage of the Austrian Bundesländer Insurance Company. At this

time the proceedings involved more than fifty suspects, including a

member of the managing board. The applicant was heard on the suspicion

of having committed, in 1982/83, altogether ten cases of fraud in that

he made false claims under insurance policies for shops owned by him

as well as under household insurance policies.

On 7 January 1987 preliminary investigations (Voruntersuchung)

were opened against the applicant. The applicant was summoned to appear

before the investigating judge on 23 February 1987. However, the

summons could not be served at the address which had been available to

the court. Subsequently, investigations were carried out to establish

where the applicant was residing.

On 22 May 1987 the investigating judge (Untersuchungsrichter) at

the Vienna Regional Criminal Court (Straflandesgericht) heard the

applicant on the suspicion against him. Subsequently, further

investigations were carried out by the Economic Police (Wirtschafts-

polizei) of the Vienna Police Directorate. In March 1987 the indictment

was preferred against twenty-one suspects, and in March and May 1988

against four further suspects.

On 30 August 1988 the Public Prosecutor's Office requested that

the applicant be heard again on one of the cases of fraud he was

suspected of. On 19 September 1988 the investigating judge requested

the Vienna Economic Police to do so.

On 12 October 1988 the Vienna Economic Police heard the applicant

again. On the same day the investigating judge requested that further

investigations be carried out as regards the applicant's case.

On 19 January 1989 the Vienna Police Directorate, Economic

Police, submitted the results of these investigations.

Meanwhile, another judge P. had become competent as investigating

judge in the applicant's case. After she had withdrawn from the case

on the ground of bias, the case was, on 1 February 1989, transferred

to judge G. He retired on 31 January 1990. Subsequently, the case was

transferred to judge A.

On 4 May 1990 the investigating judge requested a copy of the

minutes of the trial, which had been held on 28 January 1988, against

one of the main suspects, whose case was, at the time of the request,

pending before the Supreme Court. On 3 September 1990 the investigating

judge requested the Supreme Court for a copy of the minutes of the

trial against another suspect. On 10 September 1990 the Supreme Court

transmitted copies of the two minutes requested. Subsequently, further

investigations were carried out by the Economic Police. However, it

appears that they did not concern the applicant's case. Their results

were submitted to the court on 5 November 1990.

On 12 December 1990 the Vienna Public Prosecutor's Office

(Staatsanwaltschaft) preferred the indictment against the applicant.

On 22 February 1991 the proceedings against the applicant were

separated from the proceedings against other suspects.

On 30 July 1991 the presiding judge fixed 18 September 1991 as

the date for the trial against the applicant. However, as two witnesses

informed the court that they would not be available on that day, the

trial was postponed.

On 18 December 1991 the trial against the applicant was held

before the Vienna Regional Criminal Court. The applicant was convicted

of grave fraud and sentenced to one year's imprisonment. The sentence

was suspended on probation. The written judgment was served upon the

applicant on 27 April 1992.

On 9 July 1992 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's plea of nullity (Nichtigkeitsbeschwerde).

On 19 October 1992 the Vienna Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal (Berufung). On the appeal of the

Public Prosecutor's Office against sentence, it decided that only a

period of eight months was to be suspended on probation.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

about the length of the criminal proceedings against him, in particular

about the delay between 22 May 1987, when the first hearing before the

Investigating Judge took place, and 12 December 1990, when the

indictment was preferred.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 February 1993 and registered

on 2 April 1993.

On 11 May 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

22 September 1994, after an extension of the time-limit. The applicant

replied on 7 October 1994.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) about

the length of the criminal proceedings against him.

Article 6 para. 1 (Art. 6-1), so far as relevant, provides that

"in the determination ... of any criminal charge against him, everyone

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

The Government submit that the proceedings against the applicant

formed part of the "Bundesländer proceedings", which concerned a large

number of suspects and numerous charges of fraud committed to the

disadvantage of the Bundesländer Insurance Company. The duration of the

preliminary investigations of about three years was due to the

complexity of the proceedings and the fact that the Vienna Economic

Police had to be requested several times to carry out additional

inquiries. There was only one period of inactivity from February 1989

to February 1990, when judge G. had been the competent investigating

judge. A further delay of three months was caused as the date for the

trial which had been fixed for 18 September 1991, had to be postponed

to 18 December 1991 as two witnesses were not available. However this

was not imputable to the Austrian authorities. Finally, the appeal

proceedings were terminated without any delays.

The applicant maintains that his case was not heard within a

reasonable time.

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 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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THURZO v. AUSTRIA

THURZO v. AUSTRIA

LEXI