Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19361/92

by H. P.

against Austria

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

private on 12 January 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 17 October 1991 by

H. P. against Austria and registered on 16 January 1992 under file No.

19361/92;

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

Procedure of the Commission;

Having regard to :

- the Commission's decision of 13 May 1992 to communicate the

application;

- the observations submitted by the respondent Government, after an

extension of the time-limit, on 31 December 1992, and the

observations in reply submitted by the applicant on 2 February 1993

and his further submissions of 11 August 1993, as well as the

Government's further submissions of 5 November 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 1960, is an Austrian national. He is

resident in Vienna. Before the Commission, he is represented by

Mr. K. Bernhauser, a lawyer practising in Vienna.

In 1987 the Vienna Regional Court (Landesgericht), upon the request

of the Vienna Public Prosecutor's Office (Staatsanwaltschaft) of

23 March 1987, instituted criminal proceedings against the applicant and

a further person on the suspicion that they had professionally committed

fraud. In these proceedings the applicant was represented by Mr.

Bernhauser.

On 31 March 1987 the Vienna Regional Court issued a warrant of

arrest against the applicant who was taken into detention on remand on

5 April 1987. He was released on 17 April 1987 after having been

questioned by the Investigating Judge.

Subsequently investigations were also conducted against other

suspects. 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 preferred an

indictment (Anklageschrift) against the applicant and fourteen further

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 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 having professionally committed fraud and sentenced to two

years' imprisonment on probation. He was acquitted of some counts of

fraud. He was also ordered to pay compensation amounting to AS 100,000

within the probationary period of three years. The other accused were

also convicted.

The applicant lodged a plea of nullity and an appeal against the

Regional Court's judgment. The written version of the judgment, which

comprised 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 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 (Oberste 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 appeals regarding the sentence

imposed upon him and the order to pay compensation.

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.

The Supreme Court's judgment was served upon the applicant's counsel

on 5 November 1992. 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 on

18 November 1992.

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

for the reinstatement, however, 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 appeals. These appeal

proceedings are still pending.

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 17 October 1991 and registered on

26 January 1992.

On 13 May 1992 the Commission decided to communicate the application

to the respondent Government for observations on the admissibility and

merits.

On 31 December 1992 the Government submitted their observations

after an extension of the time-limit. The observations in reply by the

applicant were submitted on 2 February 1993. The applicant filed further

submissions on 11 August 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 criminal proceedings against the applicant started in March 1987

and are still pending.

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.

As regards the conduct of the authorities, the Government submit in

particular that the Presiding Judge at the Vienna Regional Court, having

received the files in May 1989, had to decide on various matter such as

separation of the proceedings, or discontinuation of the prosecution

regarding parts of the charges. Moreover, some of the addresses had been

incorrectly stated in the bill of indictment and had to be rectified.

Thus in two cases the bill of indictment could only be served in November

1989. Furthermore, a period of ten months was necessary in order to

prepare the trial in such a complex fraud case. The trial had been

delayed to some extent due to the facts that some reappointments of the

defence counsel had taken place, and the holiday wishes of defence

counsel and other participants in the proceedings had to be taken into

account. The period of about five months required to draft and serve the

written version of the lengthy judgment did not appear unreasonable.

The Commission finds that the applicant's complaint raises issues

of fact and of law which should be determined on the basis of a full

examination of the merits. The application cannot, therefore, be

declared manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

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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H.P. v. AUSTRIA

H.P. v. AUSTRIA

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