Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16131/90

by Gottfried INSAM

against Austria

__________

The European Commission of Human Rights (Second Chamber), sitting

in private on 13 January 1992, the following members being present:

MM.S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

MM.F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 19 January 1990

by Gottfried INSAM against Austria and registered on 2 February 1990

under file No. 16131/90;

Having regard to the observations submitted by the respondent

Government on 20 June 1991 and the applicant's observations in reply

submitted on 2 September 1991;

Having regard to the Commission's decision of 2 September 1991

to refer the case to the Second Chamber;

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

Commission's Rules of Procedure;

Having deliberated,

Decides as follows:

THE FACTS

The applicant, born in 1931, is an Austrian national and resident

in Graz. He is a businessman by profession. Before the Commission he

is represented by his brother Mr. F. Insam, a lawyer practising in

Graz.

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

about the length of criminal proceedings against him.

The course of the criminal proceedings may be summarised as

follows:

On 1 August 1984 Mr. G., a lawyer, as private prosecutor,

requested the Vienna District Court (Bezirksgericht) to institute

criminal proceedings against the applicant and his wife on charges of

defamation and attack on a person's creditworthiness (Kreditschädi-

gung). In the context of bankruptcy proceedings involving the

applicant and his divorced wife, they had contended in a letter to the

competent commercial court (Handelsgericht) that Mr. G. had committed

criminal offences, in particular attempted fraud.

On 30 August 1984 the applicant, who was represented by

Mr. F. Insam, commented upon the charges brought against him.

In December 1984 the District Court heard several witnesses, and

subsequently ordered other investigations. The private prosecutor and

the accused repeatedly filed submissions and requested the taking of

evidence. On 21 January 1985 the private prosecutor amended his

request for prosecution with regard to a further letter, addressed to

the official receiver in the bankruptcy proceedings.

On 28 March 1985 the District Court appointed an accountant

expert to prepare an opinion concerning the financial transactions

related to the applicant's allegations of attempted fraud. The expert

delivered his opinion on 14 October 1985.

On 16 October 1985 the District Court fixed 27 November 1985 as

the date for a hearing. Upon request of the private prosecutor, the

hearing was postponed until 9 December 1985, when the District Court

adjourned the proceedings sine die in order to take further evidence.

On 31 January 1986 the files were sent for one month to the Vienna

Public Prosecutor's Office (Staatsanwaltschaft).

In May 1986 the case was assigned to another department of the

District Court. In a procedural note of June 1986 the competent judge

stated that he awaited the outcome of relevant civil proceedings

pending before the Vienna Regional Court (Landesgericht) before fixing

a new date for the trial. Those civil proceedings had been suspended

in April 1986. The Regional Court had informed the judge that it would

send documents relevant for the criminal proceedings. According to a

file note, these documents had not yet arrived on 29 July 1986.

On 26 September 1986 the District Court, following a reminder,

fixed the expert's fees. After successful appeal proceedings, the fees

were finally fixed on 23 July 1987.

In the meantime, the applicant repeatedly requested the District

Court to fix a new date for the trial. Furthermore, on 28 April 1987

the District Court heard a further witness, and, on 25 June 1987, held

a further hearing. The District Court decided to re-conduct the trial

following the lapse of time and the change of the competent judge.

Considering numerous requests to take further evidence, it then

adjourned the trial sine die.

In January 1988 the District Court fixed 16 February 1988 as the

date for the next trial. At that date the Court decided to re-conduct

the trial due to the lapse of time. Having heard the applicant, the

District Court adjourned the trial sine die in order to take some

further evidence.

In March 1988 the case was assigned to another judge at the

District Court who noted inter alia that the file was incomplete.

At the next hearing on 14 July 1988 the trial was re-conducted

following the change of the competent judge. Mr. F. Insam stated he

would only continue to represent the second accused, i.e. the

applicant's wife. Having heard the applicant and the private

prosecutor G., the District Court adjourned the trial sine die.

In October 1988 a hearing was fixed for 18 November 1988. On

7 November 1988 the applicant requested that the criminal proceedings

be transferred to the District Court of Graz, the place of residence

of the accused. On 11 November 1988 the hearing was cancelled. The

request to transfer the proceedings was dismissed by the Supreme Court

(Oberster Gerichtshof) on 7 December 1988.

On 25 January 1989, at the next hearing, the District Court

dismissed the applicant's request to hear the witnesses who had given

testimony during the investigations and decided to close the taking of

evidence. The District Court convicted the applicant, in respect of

his submissions in the letter to the official receiver, of having

attacked G.'s creditworthiness, and sentenced him to pay a fine of

AS 14,000. The sentence was suspended on probation. The accused were

acquitted of the remaining charges. In the judgment, the Court made

extensive findings as to the private and business context of the

criminal proceedings and in particular the bankruptcy proceedings

concerned. The applicant and the private prosecutor announced appeals.

In a file note of 22 February 1989 the competent judge stated

that after having dictated the judgment she had found at the registry

two further voluminous files with annexes which had apparently been

prepared by her predecessor. Pending the transcription of the judgment

the files were sent to the Graz District Court to be consulted by the

applicant and Mr. F. Insam.

The judgment of 25 January 1989 was served on 7 April 1989.

On 18 April 1989 the applicant filed an appeal (Berufung wegen

Nichtigkeit, Schuld und Strafe). The private prosecutor G. appealed

on 21 April 1989. On 4 May 1989 the applicant commented upon the

appeal of the private prosecutor. The appeals were transmitted to the

Vienna Regional Court on 29 May 1989.

On 31 October 1989 the Vienna Regional Court, having held a

hearing, quashed the judgment of 25 January 1989 upon the applicant's

appeal and acquitted him of the charge of having attacked G.'s

creditworthiness. The appeal of the private prosecutor was dismissed.

THE LAW

The applicant's complaint relates to the length of the criminal

proceedings against him. These proceedings began in August 1984 and

terminated on 31 October 1989.

According to the applicant, the length of these proceedings - a

period of about five years - is in breach of the "reasonable time"

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

Government take the opposite view.

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 Second ChamberPresident of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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INSAM v. AUSTRIA

INSAM v. AUSTRIA

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