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AS TO THE ADMISSIBILITY OF

Application No. 20566/92

by W. S.

against Austria

The European Commission of Human Rights (First Chamber) sitting in

private on 8 March 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

G.B. REFFI

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 22 July 1994 by W.

S. against Austria and registered on 31 August 1994 under file

No. 20566/92;

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

Procedure of the Commission;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on 5 March

1993 and the observations in reply by the applicant dated 3 May

1993; the Government's submissions of 15 November 1993 and 5 January

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 1961, is an Austrian national and resident

at Günselsdorf. He is a taxi driver by profession. Before the Commission

he is represented by Mr. F. Langmayr, a lawyer practising in Vienna.

In March 1987 criminal investigations started against two persons

on the suspicion of having committed fraud in the context of a real

estate business, which were subsequently extended to several other

suspects. Thus, preliminary investigations against the applicant were

instituted by the Vienna Regional Court (Landesgericht) on

21 August 1987. In these proceedings the applicant was assisted by

Mr. Langmayr as his defence counsel.

In the course of the investigations, more than one hundred victims

of frauds were heard as witnesses. The preliminary investigations

terminated on 2 September 1988.

On 21 April 1989 the Vienna Public Prosecutor's Office (Staats-

anwaltschaft) preferred the indictment (Anklageschrift) against the

applicant and fourteen co-accused. They were charged with having

professionally committed fraud in that they pretended to be honest estate

agents employed by an estate agency in Vienna, and thereby received

payments in view of accommodation which they did not and never intended

to supply to the clients concerned. The indictment referred to more than

one hundred cases and a total damage caused by the offences which

amounted to AS 6.5 million.

The bill of indictment was received by the Vienna Regional Court on

12 May 1989.

On 28 June 1989 the bill of indictment was served upon the

applicant's defence counsel. In July 1989 two of the applicant's co-

accused appealed against the bill of indictment. Following inquiries

concerning the whereabouts of two other accused, the bill of indictment

could only be served upon them in November 1989. One of these two accused

also appealed against the bill of indictment. However, he withdrew his

appeal in February 1990. On 11 May 1990 the Vienna Court of Appeal

(Oberlandesgericht) finally committed the accused for trial. Meanwhile,

the Investigating Judge had also decided on various requests lodged by

the Public Prosecutor's Office regarding the joinder of other proceedings

against one of the accused, as well as the discontinuation of the

prosecution regarding some aspects of the charges.

On 18 May 1990 the Presiding Judge at the Vienna Regional Court

received the files. In July 1990 the criminal records regarding the

accused were received by the Regional Court. Furthermore, on 27 July 1990

the Presiding Judge ordered that the criminal files concerning previous

convictions of some of the accused be obtained.

On 6 March 1991 the dates for the trial against the accused were

fixed. Moreover, in March 1991 official defence counsel for various

accused were appointed.

The Vienna Regional Court conducted the trial every day from 8 until

18 April 1991 when it was adjourned sine die. In July 1991 copies of the

files were produced for the various official defence counsel, and

subsequently the file was transmitted to the Public Prosecutor's Office

for further action. The file was returned on 20 August 1991.

On 30 August 1991 the dates for the further trial against the

accused were fixed. The trial was conducted from 15 until

18 October 1991.

On 18 October 1991 the trial was closed, and the applicant was

convicted of fraud and sentenced to sixteen months' imprisonment.

The applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) and

an appeal against the Regional Court's judgment. The written version of

the judgment, which comprised altogether 182 pages, was served upon the

applicant's counsel on 18 March 1992.

On 22 April 1992 the files were transmitted to the Public

Prosecutor's Office for comments on the applicant's and other

co-accused's appeals. The files were returned six days later. The

Regional Court's report transmitting the appeals with the files was

received by the Supreme Court on 6 May 1992.

On 21 October 1992 the Austrian Supreme Court (Oberster Gerichts-

hof) rejected the applicant's plea of nullity as having been lodged out

of time, and decided that the files be transferred to the Vienna Court

of Appeal for a decision on the applicant's appeal regarding the sentence

imposed upon him. As regards the applicant's plea of nullity, the Supreme

Court found that the applicant had failed to file the reasons for his

plea of nullity within the general time-limit of two weeks. The Supreme

Court noted that the indication in the Regional Court's judgment

according to which there was a time-limit of four weeks to file the

reasons for the plea of nullity had been erroneous.

At that stage of the proceedings, the case files comprised twelve

volumes of more than 5,500 pages and two boxes with annexes.

On 6 November 1992 the applicant lodged a request for the

reinstatement of the proceedings regarding his plea of nullity.

In the course of the present proceedings before the Commission, the

files concerning the criminal proceedings against the applicant and

others were transmitted to the Federal Ministry of Justice between

18 November and 17 December 1992.

On 25 August 1993 the Supreme Court granted the applicant's request

for the reinstatement, but dismissed his plea of nullity. The Supreme

Court also decided that the files be transferred to the Vienna Court of

Appeal for a decision on the applicant's appeal.

On 16 November 1993 the Vienna Court of Appeal dismissed the

applicant's appeal.

COMPLAINTS

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

about the length of the criminal proceedings against him. He submits in

particular that there was an excessive delay in fixing the date for the

trial.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 July 1992 and registered on

31 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 5 March 1993 the Government submitted their observations. The

observations in reply by the applicant were submitted on 3 May 1993. The

Government made further submission on 23 November 1993, 5 January and

7 February 1994.

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 criminal proceedings against the applicant started on 28 August

1987 and lasted until 16 November 1993.

The Government, referring to the case-law of the Convention organs,

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.

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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W.S. v. AUSTRIA

W.S. v. AUSTRIA

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