Lexploria

FIRST CHAMBER

AS TO THE ADMISSIBILITY OF

Application No. 14503/89

by Peter MARGULIES

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 9 December 1991, the following members being present:

MM.J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

H. DANELIUS

SirBasil HALL

C.L. ROZAKIS

MM.L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 8 November 1988

by Peter Margulies against Austria and registered on 5 January 1989

under file No. 14503/89;

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 February 1990 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

30 May 1990 and the observations in reply submitted

by the applicant on 3 July 1990;

Having deliberated;

Decides as follows:

THE FACTS

Particular facts of the case

The applicant is an Austrian citizen born in 1964. He lives

in Vienna and he is represented in the proceedings before the

Commission by Mr. T. Prader, lawyer, of Vienna.

The facts of the case may be summarised as follows.

The applicant was arrested by the police on 14 March 1985 and

placed in detention on remand. He was suspected of having damaged and

daubed buildings in Vienna by spraying mostly political slogans, parts

of words and signs onto them. He was also suspected of unauthorised

possession of a can of tear gas (Articles 125 and 126 (1) (7) Criminal

Code (Strafgesetzbuch) and Section 36 (1) (1) Weapons Act

(Waffengesetz). He was further suspected of aiding a juvenile in the

spraying activities. The applicant was questioned by police officers

on 14 March and he denied the offences. On 15 March 1985 he was

questioned again and admitted the spraying activities.

On 18 March 1985 the Public Prosecutor filed requests in the

Vienna Juvenile Court (Jugendgerichtshof) (i) to institute proceedings

in the case against the applicant and nine other co-defendants (two of

them juveniles) on suspicion of, inter alia, criminal mischief and

unauthorised possession of weapons, (ii) to obtain an expert opinion

as to the amount of damage caused, (iii) to obtain chemical analysis

from police laboratories for the purpose of determining whether the

paint used in the sprayings was the same as that contained in spray

cans found in house searches.

On 19 March 1985 the applicant was questioned by the

investigating judge and he again admitted the spraying activities. On

20 March 1985 the Vienna Juvenile Court decided to institute

preliminary investigations against the applicant. On 3 April 1985, the

applicant was released from detention.

On 10 April 1985 the investigating judge requested a chemical

analysis from police laboratories. On 27 July 1985 an expert was

appointed to produce an opinion on the amount of damage caused. On 17

October 1985 the expert received the chemical analysis. On 6 December

1985 the expert submitted his opinion and this was sent to the

investigating judge on 9 December 1985. On 16 December 1985 the Public

Prosecutor filed several requests in the Vienna Juvenile Court

including a request to assign the applicant's case to the Vienna

Regional Court (Landesgericht für Strafsachen).

On 23 January 1986 the Vienna Juvenile Court agreed to this

request. The Vienna Juvenile Court tried and on 5 May 1986 gave

judgment in respect of the two juveniles who were suspected of having

participated in the spraying activities.

On 22 February 1986 the applicant's case-file was sent to the

Vienna Public Prosecutor.

On 19 March 1986 the Public Prosecutor filed a request for

punishment (Strafantrag) in respect of the applicant with the

investigating judge for transmission to the trial judge (Einzel-

richter) under Section 483 of the Code of Criminal Procedure

(Strafprozessordnung) on counts of criminal mischief and unauthorised

possession of weapons. He also requested that certain proceedings

against the applicant be dismissed.

On 2 April 1986 the investigating judge decided to dismiss part

of the proceedings against the applicant and further to dismiss the

entire proceedings against K., as a co-defendant. K. claimed

compensation for his detention. The investigating judge decided to

summon K. to reply to the Vienna Public Prosecutor's request that K.

be denied such compensation.

On 13 October 1986 the investigating judge was able to question

K. regarding the Vienna Public Prosecutor's request. K. maintained his

claim for compensation.

On 23 October 1987 K.'s claim for compensation was dismissed

by the Review Chamber (Ratskammer) of the Vienna Regional Criminal

Court, and the Public Prosecutor's request to punish the applicant was

transmitted to the trial judge along with the entire case-file.

The applicant's trial, in which he was accused with one other

person took place on 28 December 1987. The applicant was convicted and

sentenced to 10 months' imprisonment, suspended for 3 years.

The hearing on appeals (Berufungen) brought by the applicant

and the prosecutor was held before the Vienna Court of Appeal

(Oberlandesgericht) on 18 March 1988. The conviction for the arms

offence was quashed and the sentence was amended to one of 8 months'

and 20 days' imprisonment. The new sentence was not suspended. The

decision was served on the applicant's lawyer on 3 June 1988.

The applicant started to serve his sentence on 3 October 1988

and was released on parole on 23 January 1991.

Relevant domestic law

Article 113 of the Code of Criminal Procedure reads as follows:

(translation)

"Any person who feels aggrieved during the preliminary inquiries,

preliminary investigation or ... by a decision of or delay caused

by the investigating judge shall have the right to apply to the

Review Chamber for decision and to submit his complaint either

in writing or orally to the investigating judge or directly to

the Review Chamber."

(original)

"Alle, die sich während der Vorerhebungen, der Voruntersuchung

oder ... durch eine Verfügung oder Verzögerung des

Untersuchungsrichters beschwert erachten, haben das Recht,

darüber eine Entscheidung der Ratskammer zu verlangen und ihr

Begehren entweder schriftlich oder mündlich beim

Untersuchungsrichter oder unmittelbar der Ratskammer

anzubringen."

COMPLAINTS

The applicant complains of the length of the criminal

proceedings against him. He alleges a violation of Article 6 para. 1 of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 November 1988 and registered

on 5 January 1989. On 13 February 1990 the Commission decided to give

notice of the application to the respondent Government and to invite the

parties to submit written observations on its admissibility and merits.

The Government's observations were submitted on 30 May 1990 and

the applicant's on 3 July 1990.

On 13 July 1990 the President of the Commission decided that the

applicant should be granted free legal aid for his representation before

the Commission.

On 7 November 1990 the Commission referred the application to

the First Chamber.

THE LAW

1. The applicant alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention of the proceedings against him by virtue of

their length. Article 6 para. 1 (Art. 6-1) provides, so far as relevant,

as follows:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

It is not in dispute that the proceedings against the applicant

involved "the determination of ... [a] criminal charge" within the

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

2. The Government submit that, in respect of a period between 13

October 1986 and 23 October 1987, during which time no decisions were

taken in the applicant's case, the applicant has failed to exhaust

domestic remedies by not having applied informally to the investigating

judge or making a complaint under Article 113 of the Code of Criminal

Procedure. The applicant submits that, during this period, the

case-file was in any event not with the investigating judge but was with

the Review Chamber of the Vienna Regional Court for a decision on a

co-defendant's claim for compensation. Accordingly, he considers that

an application under Article 113 was not open to him.

The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of remedies which relate to the

breaches of the Convention alleged and at the same time can provide

effective and sufficient redress.

It is furthermore established that the burden of proving the

existence of available and sufficient domestic remedies lies upon the

State invoking the rule (cf. Eur Court H.R., Deweer judgment of 27

February 1980, Series A no. 35, p. 15, para. 26, Commission's decision

No. 9013/80, Dec. 11.12.82, D.R. 30, p. 96, p. 102).

The Commission has already held that where an applicant complains

that he has not been tried within a reasonable time on a criminal

charge, Article 26 (Art. 26) of the Convention does not require as a

general rule that he should himself have taken steps to accelerate the

proceedings. (see, e.g., No. 8261/78, Dec. 8.7.81, D.R. 25 p.157).

Accordingly, the Commission is unable to accept that the

application, or part of it, should be declared inadmissible for

non-exhaustion of domestic remedies.

3. The Government further submit that the proceedings themselves,

with the exception of the period of 13 October 1986 until 23 October

1987, were conducted expeditiously. If the length of proceedings as a

whole is taken into consideration, it must be considered reasonable.

The applicant submits that the relatively rapid proceedings

before the courts once the trial had been scheduled cannot excuse the

length of proceedings up to this date. He refers to the fact that he

confessed on 15 and 19 March 1985 and also to the fact that the

proceedings against two other people involved in the sprayings were

completed in May 1986.

The Commission is required to have regard to the whole of the

proceedings in the present case, although the period which calls for

particular examination is the time up to the first instance judgment.

The Commission finds that the case raises serious questions of fact and

law which require an examination of the merits. The application is

therefore not manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention and no other grounds for declaring

it inadmissible have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case

Secretary to the President of the

First Chamber First Chamber

(M. de SALVIA) (J. A. FROWEIN)

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MARGULIES v. AUSTRIA

MARGULIES v. AUSTRIA

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