Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20523/92

by Laszlo MUSZKA

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 26 May 1992

by Laszlo Muszka against Austria and registered on 24 August 1992

under file No. 20523/92;

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, after an extension of the time-limit, on

31 March 1993 and the observations in reply submitted by the

applicant on 14 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 1946, is an Austrian national and

resident in Vienna. Before the Convention he is represented by

Mr. R. Soyer, a lawyer practising in Vienna.

On 4 June 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 23 September and 1

October 1986 he was again heard by the Vienna Federal Police

Department, this time as a suspect.

On 7 January 1987 preliminary investigations were opened

against him on the suspicion of having committed fraud in making

false insurance claims. On 23 February 1987 the Investigating

Judge at the Vienna Regional Court (Landesgericht) heard the

applicant on the suspicion against him.

In August 1987 the Vienna Public Prosecutor's Office

(Staats-anwaltschaft) preferred the indictment against 22 of the

suspects, who appeared to be mainly involved in the fraud cases,

and requested the Vienna Regional Court to separate the

proceedings.

On 13 November 1987 the Vienna Regional Court decided to

separate the proceedings against the applicant and other

suspects, and ordered that new files be set up.

In May and August 1988 the Public Prosecutor's Office

preferred indictments against further suspects.

In September 1988 the Investigating Judge at the Vienna

Regional Court requested the Vienna Federal Police Department to

question another suspect, namely the manager of the insurance

company concerned, on the applicant's insurance claims. The

police report was submitted in January 1989.

On 12 December 1990 the Vienna Public Prosecutor's Office

preferred the indictment against the applicant. He was charged

with having committed fraud on several counts to the detriment

of the above-mentioned insurance company. The Office also

requested the Regional Court to discontinue the prosecution

regarding several other charges. The Regional Court decided

accordingly on 22 February 1991.

In April 1991 the files were forwarded to a single judge at

the Vienna Regional Court to conduct the trial against the

applicant. The date for the trial was fixed in October 1991.

The Vienna Regional Court opened the trial against the

applicant on 20 November 1991. The hearing was postponed in order

to summon a further witness.

On 21 April 1992 the date for the next hearing was fixed.

On 12 May 1992 the trial continued before the Regional

Court, and the applicant was convicted of having acted as an

accessory to fraud on six counts. He was sentenced to eight

months' imprisonment on probation. The applicant was further

ordered to pay to the insurance company concerned, which had

participated in the proceedings as a private party, AS 464.000

as compensation. The Regional Court found that the applicant had

concluded insurance contracts concerning furniture and given

false information about occurrences of loss. In fixing the

applicant's sentence, the Regional Court considered the fact that

the applicant had committed fraud on several counts and the

important damage caused as aggravating circumstances. As

mitigating circumstances the Court took into account that the

applicant had no previous convictions, that others had derived

the profit of the offences concerned, that he was in a state of

dependence towards these persons, and, moreover, that the

offences had been committed a long time ago and that since then

the applicant had had a good conduct.

The written judgment was served upon the applicant on 4

September 1992.

On 25 November 1992 the Vienna Court of Appeal (Oberlandes-

gericht), following a hearing in the presence of the applicant,

dismissed his appeal (Berufung) regarding his conviction and the

sentence imposed. However, the Regional Court's decision on the

compensation claims of the private party was quashed. The Court

of Appeal did not accede to the applicant's argument that, due

to the excessive length of the proceedings against him, the right

to prosecute him no longer existed. The Court of Appeal

considered that anybody, who participated to a limited extent in

large-scale frauds, had to accept that the proceedings against

him formed part of an overall complex and very time-consuming

procedure. The length of the proceedings could not, therefore,

be measured only against the charges in respect of the applicant,

but in the light of the entirety of the proceedings, which put

the alleged excessive length of the proceedings into perspective.

Furthermore, neither the Convention nor other legal sources

granted immunity from criminal prosecution on the ground of an

excessive length of proceedings. Similar considerations applied

to the applicant's appeal against the sentence, in which the

applicant had again invoked the allegedly excessive length of the

proceedings. Moreover, the facts that the offences had been

committed a long time ago and that since then he had had a good

conduct had been regarded as mitigating circumstances.

On 22 January 1993 the written version of the judgment was

served upon the applicant.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention about the length of the criminal proceedings against

him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 May 1992 and registered

on 24 August 1992.

On 2 December 1992 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 31 March 1993, after an extension of the time-limit, the

Government submitted their observations. The observations in

reply by the applicant were submitted on 14 June 1993.

THE LAW

The applicant complains 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 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 contend that the Court of Appeal considered the

argument as to the excessive length of the proceedings and

confirmed the first instance court judgment in taking this aspect

into account in fixing the sentence.

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 judgment of 15 July 1982, Series

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

10232/83, Dec. 16.12.82, D.R. 35 p. 213; No. 9299/81, Dec.

12.7.86, D.R. 467 p. 5).

In the present case, the Commission notes that the Vienna

Regional Court, in its judgment of 12 May 1992, fixed the

applicant's sentence with regard to various mitigating

circumstances, inter alia, the facts that the offences had been

committed a long time ago and that since then the applicant had

had a good conduct. As regards the question of an allegedly

excessive length of the proceedings, the Vienna Court of Appeal,

in its judgment of 25 November 1992, stated that anybody, who

participated to a limited extent in large-scale frauds, had to

accept that the proceedings against him formed part of an overall

complex and very time-consuming procedure. Thus the length of the

proceedings had to be measured, not only against the charges in

respect of the applicant, but against the entirety of the

proceedings, which put the alleged excessive length of the

proceedings into perspective. Regarding the fixing of the

sentence, the Court of Appeal further noted that the facts that

the offences had been committed a long time ago and that since

then he had had a good conduct were considered as mitigating

circumstances.

The Commission finds that the Vienna Regional Court and the

Vienna Court of Appeal did not expressly or in substance

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

Convention due to an unreasonable length of the proceedings.

Moreover, not the length of the proceedings as such, but the time

which had elapsed since the offences in question were committed

and the applicant's good conduct since, were considered in fixing

the sentence. In these circumstances, the applicant must still

be regarded as victim of the alleged violation of his 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 12 December 1990 when the indictment was preferred.

They consider that the applicant had not been affected by the

preceding investigations against him. Moreover, referring to the

case-law of the Convention organs, they argue that the length of

the proceedings was mainly due to the complexity of the case.

They consider that no considerable delays were imputable to the

Austrian authorities. In this respect, they submit in particular

that the Vienna Public Prosecutor's Office took the right course

when awaiting the final judgment in the proceedings against the

principal offender.

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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MUSZKA v. AUSTRIA

MUSZKA v. AUSTRIA

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