Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22634/93

by Hannes MLYNEK

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 31 August 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 20 August 1993 by

Hannes MLYNEK against Austria and registered on 15 September 1993 under

file No. 22634/93;

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 applicant is an Austrian citizen born in 1943. He lives in

Vienna. This is his fourth application to the Commission.

The background to the present application

The applicant's first application (No. 11688/85) ended with a

finding of a violation of the Convention by the Commission and the

Committee of Ministers in connection with the length of criminal

proceedings against the applicant. The second and third applications,

which also concerned the length of those proceedings (Nos. 15016/89 and

19513/92), ended with decisions by the European Court of Human Rights

and the Commission to strike them off the lists of cases (Eur. Court

H.R., Mlynek judgment of 27 October 1992, Series A no. 242-C;

Comm. Dec. 20.10.92 respectively). The latter decisions were taken

following a settlement between the parties in the following terms:

[German]

"...

1. Die österreichische Bundesregierung verpflichtet sich, einem

vom Beschwerdeführer ... nach Rechtskraft des beschwerde-

gegenständlichen Strafverfahrens einzubringenden Antrag ... auf Nachlaß

der im Verfahren 12 b Vr 3769/81, Hv 3646/87 (nunmehr: 12 b E Vr

3079/91, hv 1799/91) des Landesgerichtes für Strafsachen entstandenen

Kosten und Gebühren (insbesondere Sachverständigengebühren)

stattzugeben.

2. Der Beschwerdeführer erklärt seine obengenannten Beschwerden

[Nr. 15016/89 und Nr. 19513/92] als erledigt.

3. Der Beschwerdeführer und die Republik Österreich erklären,

daß sie keinerlei Ansprüche geltend machen werden, die in irgendeiner

Weise mit dem Gegenstand der Menschenrechtsbeschwerden Nr. 15016/89 und

Nr. 19513/92, nämlich dem in Pkt. 1 gennannten Strafverfahren, in

Zusammenhang stehen, und zwar weder im Wege eines Verfahrens vor einer

österreichischen Behörde noch vor einer internationalen Instanz.

4. Kosten der Menschenrechtsbeschwerdeverfahren Nr. 15016/89

und Nr. 19513/92 werden vom Beschwerdeführer nicht geltend gemacht.

5. Die Geltendmachung von Ansprüchen nach dem strafrechtlichen

Entschädigungsgesetz sind im Falle eines Freispruches des

Beschwerdeführers in dem unter Punkt 1 genannten Strafverfahren von

Punkt 3 nicht erfaßt.

..."

[Translation]

"...

1. The Austrian Federal Government undertake to exonerate the

applicant, Dr. Hannes Mlynek, ... from the obligation to pay the costs

and fees (in particular experts' fees) incurred in the proceedings in

case 12 b Vr 3769/81, Hv 3646/87 (now 12 b E Vr 3079/91, Hv 1799/91)

before the Vienna Regional Court, in accordance with a claim to be made

... once the decision in the proceedings which are the subject of the

application has become final.

2. The applicant declares that his above-mentioned applications

[Nos. 15016/89 and 19513] are to be regarded as settled.

3. The applicant and the Republic of Austria declare that they

will under no circumstances bring before an authority, whether Austrian

or international, claims arising in any way from the subject matter of

[the aforesaid] human rights applications ..., that is the criminal

proceedings referred to in point 1.

4. The applicant will not pursue a claim for costs and expenses

incurred in connection with the proceedings concerning [the said]

applications ...

5. The introduction of claims under the Criminal Law

(Compensation) Act in the event of the applicant's acquittal in the

criminal proceedings referred to under point 1 is not covered by the

undertaking in point 3.

..."

The facts concerning the present application

On 21 May 1980 criminal proceedings were brought against the

applicant in the Vienna Regional Court (Landesgericht). They led to

his conviction, on 30 May 1984, on counts of misappropriation of funds

(Untreue) and fraud (Betrug). On 30 January 1987 the Supreme Court

(Oberster Gerichtshof) quashed the judgment and remitted the case to

the same court, which re-opened the proceedings on 11 January 1988.

The applicant was sentenced, on 23 March 1988, to three years'

imprisonment, two of which were suspended, for misappropriation of

funds and negligent bankruptcy (fahrlässige Krida). That judgment was

quashed by the Supreme Court on 1 June 1990 and once again remitted to

the Vienna Regional Court.

On 16 September 1991, the Vienna Regional Court, following

hearings between July and September 1991, convicted the applicant of

negligent bankruptcy and sentenced him to 12 months' imprisonment,

suspended for one year.

On 8 January 1992 the applicant received the transcript of the

hearing of 11 July 1991. He considered that there were a number of

errors in it, and requested the Regional Court to correct the trial

record.

On 3 March 1992 the applicant received the written version of the

judgment of 16 September 1991, and on 24 March 1992 he appealed against

the judgment.

On 27 March 1992 the Regional Court made certain amendments to

the record of the proceedings on 11 July 1991. Some of the amendments

were as requested by the applicant, others as requested by the

prosecution. Not all of the applicant's requests for amendment were

allowed. The applicant's complaint (Beschwerde) against the decision

of 27 March 1992 was rejected as inadmissible by the Vienna Court of

Appeal on 19 February 1993 on the ground that no appeal lay against the

results of an application to amend the trial record.

On 24 March 1993 the Vienna Court of Appeal rejected the

applicant's plea of nullity.

COMPLAINTS

The applicant alleges a violation of Articles 6 and 13 of the

Convention and Article 2 of Protocol No. 7 to the Convention in that

the failure to supply him with the transcript of the proceedings on

11 July 1991 prevented him from making further requests for evidence

to be taken, and thereby made the proceedings unfair. He underlines

that he only received the transcript in January 1992, even though

Austrian law provides for transcripts to be prepared within 48 hours.

The applicant also sees a violation of the Convention in the fact

that the request for the transcript to be amended was not dealt with

until after the applicant had received the written version of the

judgment. He considers that the declaration he made when settling

Applications Nos. 15016/89 and 19513/92 does not prevent him from

making the application as those applications related solely to the

length of the proceedings, and were in any event settled before the

matters now complained of occurred.

THE LAW

The applicant alleges violation of Articles 6 and 13

(Art. 6, 13) of the Convention and of Article 2 of Protocol No. 7

(P7-2) to the Convention.

The Commission notes that, on 15 September 1992, the applicant

entered into an agreement with the Government of the Republic of

Austria in the context of Application No. 15016/89, which was then

pending before the European Court of Human Rights, and Application

No. 19513/92, which was then pending before the Commission. In the

declaration which the parties then made, the applicant agreed that he

would "under no circumstances bring before an authority, whether

Austrian or international, claims arising in any way from the subject

matter of [the aforesaid] human rights applications ..., that is the

criminal proceedings referred to in point 1". The Commission must

therefore consider whether, as a result of that declaration, the

applicant may at all bring the present application.

The Commission recalls that, in the context of an alleged waiver

of a right before the domestic authorities, waiver, insofar as it is

permissible, must be established in an unequivocal manner and requires

minimum guarantees commensurate to its importance (Eur. Court H.R.,

Pfeifer and Plankl judgment of 25 February 1992, Series A no. 227,

p. 16, para. 37). The Commission finds that these criteria can

usefully be applied to a case in which an applicant may have agreed not

to bring future applications.

The Commission notes, first, that it has not been alleged that

the settlement reached in Applications Nos. 15106/89 and 16513/92 came

about as a result of pressure or proposals from the Convention organs,

and there is no indication that the applicant was under any undue

pressure from the Government.

The Commission next notes that the agreement between the parties

in terms refers to "claims arising in any way from the subject matter

of [the aforesaid] human rights applications ..., that is the criminal

proceedings referred to in point 1". This includes possible

applications to the Commission in connection with other aspects of the

proceedings than the length. Moreover, the agreement expressly

excludes certain future proceedings from its scope (an application

under the Criminal Law (Compensation) Act if the applicant was

acquitted), which indicates that the parties had considered the

possibility of further litigation arising from the case.

The Commission therefore finds that the declaration made by the

applicant in the context of Applications Nos. 15016/89 and 19513/92 is

unequivocal in that it was intended to prevent him from bringing

further applications before the Convention organs in connection with

the criminal proceedings referred to in it. It also finds that the

Commission's review of whether the declaration was unequivocal or not

provides an appropriate procedural guarantee in a case such as the

present, where the waiver relates to proceedings under Article 25

(Art. 25) of the Convention, and there is no indication that the

applicant was under any misapprehension in agreeing to it.

It follows that the applicant may not claim to be a victim of a

violation of the Convention, and that the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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MLYNEK v. AUSTRIA

MLYNEK v. AUSTRIA