Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20454/92

by L. W.

against Austria

The European Commission of Human Rights (First Chamber)

sitting in private on 7 April 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. MARXER

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 12 June 1992

by L. W. against Austria and registered on 10 August 1992 under

file No. 20454/92;

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 2 April 1993 and the observations in

reply submitted by the applicant on 7 June 1993;

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 1941, is an Austrian national and

resident in Vienna. Before the Commission she is represented by

Ms. H. Hofbauer, a lawyer practising in Vienna.

On 10 March 1986 the applicant was questioned by the Vienna

Federal Police Department (Bundespolizeidirektion) in connection

with investigations concerning a series of fraud cases committed

to the disadvantage of the Austrian Bundesländer Insurance

Company. These proceedings involved initially investigations

against about one hundred suspects, including a member of the

managing board, and the overall damage caused by the numerous

fraud cases amounted to AS 130 million. On 13 March 1986 she was

again heard by the Vienna Federal Police Department, this time

as a suspect.

On 24 March 1986 investigations were instituted against the

applicant. She was suspected of having committed fraud and

fraudulent conversion to the disadvantage of the Austrian

Bundesländer Insurance Company, her employer, in that in 1980/81

she had made false claims in connection with damages to her and

her husband's construction of a bungalow.

On 14 August 1986 the Investigating Judge at the Vienna

Regional Court (Landesgericht) heard the applicant on the

suspicion against her.

On 26 August 1987 the Vienna Public Prosecutor's Office

(Staats-anwaltschaft) preferred the indictment against the

applicant and various other accused.

The trial started before the Vienna Regional Court on 20

January 1988. It continued on altogether 34 days between January

and June, a last hearing being conducted in September 1988. The

concept of the trial was to conduct the proceedings against the

various accused individually so that the accused concerned only

had to appear at some days of the trial, and the judgment on the

charges against them was pronounced upon the close of the taking

of evidence in their particular case.

On 24 January 1990 judgments were served upon most of the

other accused. The proceedings against the applicant were

separated from the main proceedings on the ground that following

her statements at the trial, according to which a defrauded sum

of money had been received by a third person, the Vienna

Prosecutor's Office requested investigations against the person

concerned as well as further investigations against the applicant

on the suspicion of defamation.

It appears that the proceedings were not separated at an earlier

stage as the competent Judge had considered the outcome of the

main proceedings as important.

On 5 February 1990 an expert opinion was requested as to the

construction damages in respect of which the applicant had raised

insurance claims. The amended version of this opinion was

received at the Regional Court on 6 July 1990.

On 20 March and 10 April 1991 the Vienna Regional Court held

trial against the applicant.

On 10 April 1991 the Regional Court convicted the applicant

of attempted grave fraud and sentenced her to twenty months'

imprisonment on probation. She was acquitted of the remainder of

charges. The written judgment was served upon her on 30 August

1991. On 19 December 1991 the Austrian Supreme Court (Oberster

Gerichtshof) dismissed the applicant's appeal on points of law

(Revision). Upon the applicant's appeal (Berufung), the sentence

was reduced to fifteen months' imprisonment on probation. In this

respect, the Supreme Court, weighing the mitigating and

aggravating circumstances in fixing the applicant's sentence, had

also regard to the length of the criminal proceedings against her

and considered the sentence imposed by the Regional Court as

slightly excessive ("Bei zusammenschauender Würdigung der ...

Strafzumessungsgründe erscheint unter weiterer Bedachtnahme auf

die lange Verfahrensdauer ... die vom Schöffengericht verhängte

... Freiheitsstrafe doch etwas überhöht").

The decision was served on 13 February 1992.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention about the length of the criminal proceedings against

her, in particular about the delay between the first part of the

trial in 1988 and its continuation in March 1991. She also

submits that the written judgment of the Regional Court was

served upon her belatedly.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 June 1992 and

registered on 10 August 1992.

On 8 December 1992 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 2 April 1993 the Government submitted their observations.

The observations in reply by the applicant were submitted on 7

June 1993.

THE LAW

The applicant complains about the length of the criminal

proceedings against her.

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 consider that the applicant can no longer

claim to be a victim, within the meaning of Article 25 (Art. 25)

of the Convention, of the alleged breach of Article 6 para. 1

(Art. 6-1). They refer to the Supreme Court's judgment upon the

applicant's appeal according to which it had regard to the length

of the proceedings when reducing her sentence from twenty months'

to fifteen months' imprisonment.

The Commission recalls that an applicant can no longer claim

to be a victim within the meaning of Article 25 para. 1 (Art. 25-

1) of the Convention of a failure to observe the "reasonable

time" requirement in Article 6 para. 1 (Art. 6-1) of the

Convention if the relevant courts expressly acknowledged the

existence of a breach of that provision and if redress has been

given (Eur. Court H.R., Eckle judgement of 15 July 1982, Series

A no. 51, p. 31 para. 67, p. 32 paras. 69-70, p. 39 para. 94; No.

8858/80, Dec. 6.7.83, D.R. 33 p. 5).

In the present case, the Commission notes that the Supreme

Court, in its judgment of 19 December 1991, reduced the

applicant's sentence by five months to fifteen months'

imprisonment on probation. Weighing the mitigating and

aggravating circumstances, the Supreme Court had also regard to

the length of the criminal proceedings against her.

The Commission finds that the Supreme Court did not

expressly recognise a violation of Article 6 para. 1 (Art. 6-1)

of the Convention due to an unreasonable length of the

proceedings, and the length was only one supplementary

consideration for reducing the sentence. In these circumstances,

the applicant must still be regarded as victim of the alleged

violation of her right to a hearing within a reasonable time.

As regards the length of the criminal proceedings against

the applicant, the Government maintain that the relevant period

started on 26 August 1987 when the indictment was preferred. They

considered that the applicant had not been affected by the

preceding investigations against her which had commenced in March

1986. Moreover, referring to the case-law of the Convention

organs, they argue that the length was mainly due to the

complexity of the case. They consider that no considerable delays

were imputable to the Austrian authorities.

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) (A. WEITZEL)

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L.W. v. AUSTRIA

L.W. v. AUSTRIA

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