Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20178/92

by Franz HENGL

against Austria

The European Commission of Human Rights sitting in private on

1 December 1993, 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

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 15 January 1992

by Franz HENGL against Austria and registered on 17 June 1992 under

file No. 20178/92;

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 1940. He is

represented before the Commission by Mr. A. Rosicky, a lawyer

practising in Vienna. The facts of the case, as submitted by the

applicant and apparent from the documents lodged with the application,

may be summarised as follows.

Criminal proceedings were opened against the applicant in 1982

under file number 12 Vr 9703/82. In the indictment of 12 August 1988

the applicant was accused of various fraud offences committed between

1980 and 1986. He was later also accused of threatening, amongst

others, a legal aid lawyer.

From 2 July 1986 until 30 June 1987 the applicant was in

detention on remand. He was released because the Vienna Court of

Appeal (Oberlandesgericht) refused to extend the permitted period of

detention in that, given the complexity of the case, it was unlikely

that the indictment and trial would be in the foreseeable future.

On 2 June 1987 the applicant's privately employed lawyer was

questioned by the Vienna Regional Court as to some AS 1,000,000 which

had been deposited with him by the applicant in 1984, before the lawyer

had been representing the applicant. The lawyer gave information as

to how and when he had received the sum, but declined, by reference to

Article 153 of the Code of Criminal Procedure (Strafprozeßordnung), to

give information as to smaller sums (of some AS 100,000) which the

lawyer had received. Article 153 of the Code of Criminal Procedure

provides for a limited right for witnesses to refuse to give evidence

when they run the risk of criminal proceedings or direct financial

disadvantage.

On 5 June 1987 the Review Chamber (Ratskammer) of the Regional

Court excluded the lawyer from further representing the applicant. The

Chamber relied on Article 40 para. 1 of the Code of Criminal Procedure

which prohibits representation by persons who have been summoned as

witnesses in the trial, and states that the Review Chamber shall

determine whether persons who have been have heard as witnesses at an

earlier stage should be excluded from representation. The Review

Chamber noted that the lawyer had declined to answer certain questions

by reference to Article 153 of the Code of Criminal Procedure, and

found that there was a risk of a conflict of interests. Accordingly,

the lawyer was excluded. The applicant's appeal against the decision

of 5 June 1987 was rejected by the Vienna Court of Appeal

(Oberlandesgericht) on 6 December 1988 on the ground that such

decisions of the Review Chamber could not be appealed.

On 31 January 1990 the trial (Hauptverhandlung) was opened. The

applicant was in hospital. On 9 February 1990 the President of the

Regional Court ordered the applicant's detention on remand

(Untersuchungshaft) on the ground that there was a risk that he would

abscond and that he would commit criminal offences. The Review Chamber

rejected his appeal against this decision on 28 February. On 21

February the Regional Court had refused an application for release

(Enthaftungsantrag). On 20 March 1990 the Vienna Court of Appeal

rejected the applicant's complaints (Beschwerden) against the decisions

of 21 and 28 February.

The applicant was convicted on 18 May 1990 and sentenced to a six

years' prison sentence. The Regional Court ordered that he should

remain in detention on remand. The applicant's complaint against the

remand order was rejected by the Court of Appeal on 21 June 1990.

The applicant's plea of nullity was rejected in part by the

Supreme Court on 29 August 1991. On 17 October 1991 the Supreme Court

dealt, in a public hearing, with the remainder of the plea of nullity

and with the applicant's appeal against sentence. It accepted the plea

of nullity in part and remitted the question of sentence in respect of

part of the conviction to the Regional Court. The remainder of the

plea of nullity was rejected, and the prison sentence reduced to five

and a half years.

The judgment of the Supreme Court was received by the applicant's

representative on 30 January 1992.

COMPLAINTS

The applicant alleges a violation of Article 6 of the Convention

in the following respects:

1. He considers that the proceedings, which began in 1982, lasted

an unreasonable time within the meaning of Article 6 para. 1 of the

Convention;

2. He considers that the exclusion in 1987 of the lawyer he had

chosen to represent him violated Article 6 para. 3(c) and Article 6

para. 1 of the Convention;

3. He considers that the exclusion of his chosen lawyer resulted in

his having to rely on the services of officially appointed lawyers, and

that one of these lawyers, who represented him at his trial, did not

have sufficient time to prepare the case, in violation of Article 6

para. 1 and Article 6 para. 3(b) of the Convention;

4. He considers that, during the trial on 11 May 1990, the Court

failed to establish that one of the expert witnesses was not in fact

an appropriate person, in violation of Article 6 para. 1 of the

Convention;

5. He considers that the time spent in detention on remand was in

violation of Article 6 of the Convention.

THE LAW

1. The applicant alleges that the length of the proceedings exceeded

the "reasonable time" prescribed by Article 6 para. 1 (Art. 6-1) of the

Convention.

The Commission notes that the proceedings against the applicant

were opened in 1982, although the indictment eventually related

principally to offences committed in the period 1980 to 1986. The

applicant's representative received the judgment of the Supreme Court

on 30 January 1992.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2(b) of the Rules

of Procedure, to give notice of this complaint to the respondent

Government.

2. The applicant also alleges a violation of Article 6 (Art. 6) of

the Convention in that his chosen lawyer was excluded from representing

him, in that his legal aid lawyer had inadequate time for preparation

of the case, and in that the court failed to establish that one expert

witness was not an appropriate person for the type of proceedings in

question.

However, the Commission is not required to decide whether or not

these facts disclose any appearance of a violation of Article 6

(Art. 6) of the Convention as the applicant has failed to establish

that he has exhausted the remedies available under Austrian law, in

accordance with Article 26 (Art. 26) of the Convention. In particular,

and notwithstanding a specific request from the Commission's

Secretariat, he has failed to submit a copy of his plea of nullity from

which he would be able to establish that these matters were raised on

appeal. Moreover, it does not appear from the documents submitted that

the matters were raised at the trial, as required by Austrian law when

procedural rather than substantive errors of law are alleged.

Furthermore, with regard to the allegedly inadequate time available to

the legal aid lawyer, the Commission notes that a plea of nullity can

be made on the ground that there was inadequate time for preparation

of the case, even where the formal time limits have been observed (SSt

11/88, EvBl 1975/180).

It follows that this part of the application must be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

3. Finally, the applicant complains that the time he spent in

detention on remand exceeded the "reasonable time" prescribed by

Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission has considered this complaint under Article 5

para. 3 (Art. 5-3) of the Convention, which deals specifically with the

length of detention on remand, rather than Article 6 (Art. 6).

The Commission is only required to have regard to the length of

the detention on remand which began on 9 February 1990, that is, after

the applicant had failed to attend the initial stages of the trial.

Earlier detention on remand (2 July 1986 to 30 June 1987) cannot be

considered by virtue of the six months' time limit contained in

Article 26 (Art. 26) of the Convention (cf. No. 7975/77, Dec. 13.12.78,

D.R. 15 p. 169, 195).

It is not clear from the applicant's submissions and the

documents lodged when, for the purposes of Austrian law, the detention

on remand ordered on 9 February 1990 in fact ended. The Regional Court

ordered that the detention should continue after conviction, even

though the applicant had given notice of intention to appeal. For the

purposes of the Convention, however, detention subsequent to a

conviction at first instance is regarded as detention "after conviction

by a competent court" within the meaning of Article 5 para. 1 (a)

(Art. 5-1-a) of the Convention (cf. Eur. Court H.R., B. v. Austria

judgment of 28 March 1990, Series A no. 175, pp. 14-16 paras. 35-40).

Accordingly, the period to be taken into consideration by the

Commission for the purposes of the present question under Article 5

para. 3 (Art. 5-3) of the Convention begins on 9 February 1990, when

the applicant was detained. It ends on 18 May 1990, when the applicant

was convicted by the Regional Court.

The Commission finds that this period of a little over three

months does not exceed the "reasonable time" requirement of Article 5

para. 3 (Art. 5-3) of the Convention.

It follows that this part of 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 unanimously

ADJOURNS its examination of the complaint as to the length

of the proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

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

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HENGL v. AUSTRIA

HENGL v. AUSTRIA

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