Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16704/90

by S.T.

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

Sir Basil HALL

MM. C.L. ROZAKIS

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 10 April 1990 by

S.T. against Austria and registered on 11 June 1990 under file No.

16704/90;

Having regard to the observations submitted by the respondent

Government on 11 January 1991 and the observations in reply submitted

by the applicants on 18 April 1991;

Having regard to the Commission's decision of 9 April 1991 to

refer the case to the First Chamber;

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

Commisison's Rules of Procedure;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant, an Austrian citizen born in 1953, is a tap room

assistant residing at Graz in Austria. Before the Commission he is

represented by Dr. K. Hermann, a lawyer practising in Graz.

On 12 October 1985 the applicant introduced Application No.

11894/85 with the Commission in which he raised various complaints

about the criminal proceedings in which he was involved. Under Article

6 para. 1 of the Convention the applicant complained inter alia of the

length of these proceedings.

On 8 May 1989 the Commission declared admissible the applicant's

complaints under Article 5 para. 3 of the Convention concerning the

length of his detention on remand, and under Article 5 para. 4 of the

Convention concerning proceedings before the Linz Court of Appeal. The

remainder of the application was declared inadmissible. With regard to

the complaint concerning the length of the proceedings, the Commission

found that the length of the proceedings had not then exceeded the

notion of "reasonable" within the meaning of Article 6 para. 1 of the

Convention.

On 3 July 1990 the Commission adopted its Article 31 Report on

the case, finding violations of Article 5 paras. 3 and 4 of the

Convention.

After the Commission's decision on the admissibility of

Application No. 11894/85, the criminal proceedings in which the

applicant was involved continued. The present application concerns the

entire length of these proceedings.

I.

On 1 June 1984 the Salzburg Regional Court (Landesgericht) issued

a warrant of arrest (Haftbefehl) against the applicant, who was then

of unknown abode, on suspicion of having committed, inter alia, the

offence of aggravated fraud (schwerer Betrug) according to Section 147

para. 3 of the Austrian Criminal Code (Strafgesetzbuch), together with

a certain J. M. On 19 July 1984 the applicant was remanded in custody

though he was released on 20 July 1984. On 24 August 1984, the

Salzburg Regional Court issued an international search warrant

(Steckbrief) against the applicant.

On 11 January 1985 at 23h00 the applicant was arrested at Graz

airport where he was awaiting the arrival of a friend. The applicant

was brought to the Feldkirchen constabulary. On 12 January 1985 he was

heard by the investigating judge at the Graz Regional Court. On 17

January 1985 the applicant was transferred to Vienna and on 22 January

1985 to Salzburg. The co-accused J. M. was arrested on 17 December

1984.On 23 January 1985 a judge at the Salzburg Regional Court heard

the applicant. The applicant was informed that his detention on remand

had been ordered on the grounds of a danger of absconding and of

repetition according to Section 180 paras. 1 and 2 of the Code of

Criminal Procedure.

In its decision of 23 January 1985 the Salzburg Regional Court

ordered the applicant's detention on remand, inter alia, on suspicion

of attempted and completed fraud according to Section 147 para. 3 of

the Criminal Code. The Court stated that the applicant had previously

attempted to avoid prosecution by changing his residence for which

reason there was a danger that, if he remained at liberty, he would

abscond or hide in view of the prospective punishment. The Court also

saw a danger of repetition as the applicant was not socially integrated

and without employment. For this reason, it was to be feared that he

would commit further offences, with severe consequences, of the same

kind as the ones in respect of which he had twice been convicted

previously.

This decision was handed over to the applicant on 24 January

1985. He was heard by the investigating judge as to the reported facts

(Anzeigetatbestände) on 25, 28, 29, 30 and 31 January and 1 February

1985. On 7 February 1985 the Swiss authorities announced their

intention to prosecute the applicant.

On 15 February 1985 the applicant filed an application for his

release from detention which the Review Chamber (Ratskammer) at the

Salzburg Regional Court refused on 27 February 1985.

Meanwhile, on 19 February 1985, further investigations were

instituted with regard to offences allegedly committed by the applicant

in Switzerland. On 1 March 1985 the case-file was sent back from the

Review Chamber to the investigating judge who was, however, on holiday

until 15 April 1985. On 30 April 1985 the investigating judge heard

the applicant with regard to the co-accused J. M. From 26 April to 1

May 1985 the applicant served a prison sentence relating to a different

offence. On 15 May and 24 June 1985 the investigating judge requested

information from two German banks.

On 19 June 1985, upon application of the investigating judge, the

Linz Court of Appeal (Oberlandesgericht) decided in camera to allow an

extension of the applicant's detention on remand for up to eight months

as from 23 January 1985. The applicant filed an appeal against this

decision which the Supreme Court (Oberster Gerichtshof) rejected as

being inadmissible on 22 August 1985. The case-file was returned to

the investigating judge on 11 September 1985.

On 12 September 1985 the applicant again applied for his release.

On 18 September 1985 the Linz Court of Appeal, upon application

of the investigating judge, decided in camera that the applicant's

detention on remand could be prolonged for up to 11 months.

On 24 September 1985 the Regional Court decided that the

preliminary investigations instituted against the applicant should be

extended also to the offence of arson (Brandstiftung) committed in

Switzerland. The applicant's appeal (Beschwerde) against this decision

was rejected on 2 October 1985 by the Review Chamber which found, inter

alia, that the applicant had failed to motivate his appeal.

Upon termination of the preliminary investigations the case-file

was sent to the Public Prosecutor's Office (Staatsanwalt- schaft) on

2 October 1985. The latter applied on 31 October 1985 for the

continuation of the preliminary investigations in order to complete the

case-file. These applications were granted on 7, 15 and 19 November

1985. The case-file was then transmitted to the Linz Court of Appeal

on 3 December 1985 for decision on the prolongation of the applicant's

detention.

On 11 December 1985, upon application of the investigating judge

and the Public Prosecutor's Office, the Linz Court of Appeal extended

in camera the applicant's detention on remand for up to fifteen months.

Following the requests of the applicant and J. M. for release

from detention on remand the case-file was transmitted to the Review

Chamber at the Salzburg Regional Court. On 2 January 1986 the Review

Chamber dismissed the requests. The applicant's further appeal against

this decision was dismissed in camera on 22 January 1986 by the Linz

Court of Appeal.

Also on 2 January 1986 the applicant was heard by an

investigating judge and confronted with a certain S. R. A final

interrogation of the applicant took place on 22 January 1986.

A petition for release, which the applicant addressed to the

Constitutional Court (Verfassungsgerichtshof), was dismissed by that

Court as inadmissible in a decision issued on 28 February 1986.

II.

Meanwhile, on 26 February 1986 the preliminary investigations

were closed and on 12 March 1986 the Salzburg Public Prosecutor's

Office indicted the applicant on the grounds of partly attempted and

partly completed aggravated professional fraud according to Section 147

para. 3 of the Criminal Code, as well as of having forged a

particularly protected document.

According to the bill of indictment, which numbered seventeen

pages, the applicant had drawn a number of cheques on various banks in

Germany and Austria and given them to Ch.B. and J.M. to cash them in

other banks in these countries. The bill of indictment mentioned the

applicant's previous two convictions on charges of fraud and of

receiving stolen goods, respectively, and stated that he was being

sought in the Federal Republic of Germany for nineteen instances of

cheque fraud. It referred to damages of 950,000 AS concerning

completed fraud and 1,250,000 AS concerning attempted fraud. In the

bill of indictment the Public Prosecutor's Office stated that further

investigations would be pursued in respect of the suspicion of arson

and other instances of aggravated professional fraud.

The applicant's objection against the bill of indictment was

dismissed, on 11 April 1986, by the Linz Court of Appeal which found

that the results of the investigations sufficed to suspect the

applicant of having committed the alleged offences, and it therefore

committed the applicant for trial.

In a separate decision of 11 April 1986, upon application of the

investigating judge, the Court of Appeal extended in camera the

applicant's detention on remand for up to seventeen months in view of

the volume and difficulties of the investigations.

On 30 April 1986 the case-file was transferred to the trial judge

who on 23 May 1986 ordered the hearing to take place on 11 June 1986.

On 5 June 1986 the applicant's lawyer stated that he would no longer

represent the applicant after 11 June 1986.

The applicant's trial commenced, and a first hearing took place

on 11 June 1986. Thereafter, the hearing was adjourned. Also on 11

June 1986, an official defence counsel was appointed.

On 16 June 1986 the applicant requested his release from

detention, claiming that he had permanent residence in Austria and

confirmation of secure employment. This request was dismissed on 25

June 1986 by the Salzburg Regional Court and upon appeal on 9 July 1986

by the Linz Court of Appeal.

On 24 July 1986 the Salzburg Regional Court contacted the Vienna

Regional Court as to the date of release of Ch. B. On 29 July 1986 a

German court was requested to transmit a decision which arrived on 18

August 1986.

Meanwhile, on 25 July 1986 the applicant filed a further request

to be released from detention which was dismissed by the Salzburg

Regional Court on 30 July 1986 and, upon the applicant's appeal, by the

Linz Court of Appeal on 20 August 1986.

On 22 September 1986 letters rogatory (Rechtshilfeersuchen) were

transmitted to the Swiss Federal Office for the Police and to a German

court in respect of the witness D. The file was then sent to a

forensic expert who prepared an expert opinion in respect of J. M. on

8 October 1986.

The Salzburg Regional Court again decided in camera on 12

November 1986 not to release the applicant. On 26 November 1986 the

Linz Court of Appeal rejected the applicant's appeal.

Meanwhile, on 12 November 1986 the applicant unsuccessfully

attempted to discharge his officially appointed lawyer. On 17 November

1986 the applicant complained that no date had been fixed for a

hearing. This complaint was to no avail, as the authorities were

awaiting evidence from Germany. On 3 December 1986 a German court

transmitted further evidence to the Austrian authorities as to the

witness D.

Following the applicant's complaints about his officially

appointed lawyer, the Bar Association stated on 16 December 1986 that

they saw no reason to appoint a new lawyer.

On 12 and 16 December 1986 the trial judge requested the Dornbirn

and Bregenz Constabularies to provide the addresses of Ch.B. and S. R.

A similar request in respect of Ch. B. was filed with the Salzburg

Federal Police Direction on 22 January 1987.

On 31 December 1986 the applicant filed a request to be released

from detention on remand. This was refused by the Review Chamber at

the Salzburg Regional Court on 21 January 1989.

On 28 January 1987 the Review Chamber refused the applicant's

further request of 21 January for release from detention. However,

upon the applicant's appeal the Linz Court of Appeal decided on 18

February 1987 to release the applicant on conditions, inter alia, that

he reported every two days to the police. The applicant was released

on the same day and not remanded in custody again during these

proceedings.

On 4 March 1987 the Linz Court of Appeal dismissed the request

of the Salzburg Regional Court to prolong J. M.'s detention on remand

up to eight months. J. M. was released from detention on 12 March

1987.On 6 April 1987 the Graz Federal Police Direction informed the

Salzburg Regional Court that the applicant was complying with the

obligation regularly to report to the police.

On 19 June 1987 the applicant filed a request no longer to have

to report to the police. On 23 June 1987 the request was transmitted

for observations to the Salzburg Public Prosecutor's Office which on

26 June 1987 stated that it opposed complete termination of the

obligation to report, though it agreed to an obligation to report once

a week only.

On 2 July 1987 the investigating authorities obtained further

information concerning the applicant.

On 23 July 1987 the President of the Salzburg Regional Court

decided that the applicant now had to report weekly to the police. The

applicant's appeal against this decision was declared inadmissible by

the Linz Court of Appeal on 9 September 1987. Nevertheless the Court

found that the decision of 23 July 1987 had not been passed by the

correct body for which reason it quashed the decision while ordering

a bench of three judges to take the decision.

On 30 September 1987 a bench of three judges at the Salzburg

Regional Court again reached the same conclusion as in the decision of

23 July 1987. The applicant's appeal was declared inadmissible on 4

November 1987 by the Linz Court of Appeal.

Meanwhile, on 9 July 1987 the Salzburg Public Prosecutor's Office

indicted the applicant in respect of further instances of fraud. The

bill of indictment which numbered nine pages stated that the applicant

had, together with a certain S. R., attempted fraudulently to cash

uncovered cheques, whereby the damages amounted to approximately

800,000 AS. The offences concerned banks in Germany, Austria and

Switzerland. The bill of indictment was sent to the applicant on 17

July 1987. The applicant's appeal against the indictment of 9 July

1987 was dismissed by the Linz Court of Appeal on 30 September 1987.

On 27 October 1987 these proceedings were joined to the main

proceedings.

On 2 November 1987 the Salzburg Public Prosecutor's Office

requested the trial to be fixed as soon as possible.

On 12 February 1988 the applicant requested photocopies of

certain documents.

On 22 February 1988 further trial hearings before the Salzburg

Regional Court were fixed for 25 and 26 May 1988. The photocopies were

sent to the applicant.

On 24 February 1988 the Court was informed that the summons to

the trial of the witnesses Ch. B. and S. R could not be served. On 10

March 1988 the Court asked the Feldkirch authorities whether Ch. B. had

an address. On 14 March 1988 the Court was informed that Ch. B.'s

address was unknown.

On 15 March 1988 the further witness M. D. informed the Salzburg

Regional Court that she would be abroad and could therefore not be

present at the trial hearing.

On 17 March 1988 the Bregenz authorities informed the Salzburg

Regional Court of the new address of S. R. The Court was further

informed that the witness Ch. B. was detained in Feldkirch awaiting

extradition to, and that another witness G.D. was remanded in custody

in, the Federal Republic of Germany.

Upon the Salzburg Regional Court's further inquiry of 18 March

1988 information was received by telephone on 18 April 1988 that Ch.

B. was now detained at Feldkirch prison. The Salzburg Regional Court

then requested Ch. B.'s presence (Vorführung) at the trial hearing.

On 18 May 1988 the Salzburg Regional Court filed a letter

rogatory with the Aschaffenburg District Court (Amtsgericht) in the

Federal Republic of Germany as to whether the witness G.D. would agree

to come to Salzburg for questioning. The District Court replied that

G. D. would not agree.

The hearing took place on 25 and 26 May 1988, the minutes of the

hearing eventually comprising 87 pages.

On 26 May 1988 the Salzburg Regional Court convicted the

applicant of aggravated fraud and of forgery and sentenced him to four

and a half years' imprisonment. The periods of time which the

applicant had spent in detention in connection with the present

proceedings were deducted from the sentence, namely the period from 19

to 20 July 1984, from 11 January to 26 April 1985, and from 1 May 1985

to 18 February 1987. In the same decision, the Court sentenced J. M.

conditionally to three years' imprisonment. Following the judgment the

applicant announced that he would file a plea of nullity

(Nichtigkeitsbeschwerde) and an appeal (Berufung). The Public

Prosecutor's Office also announced that it would file an appeal.

On 17 June 1988 the applicant announced his representation by the

present lawyer.

On 18 July 1988 the applicant requested the transmission of the

case-file to the Graz District Court (Bezirksgericht) for consultation.

He also requested a copy of the minutes of the hearing to be sent to

his lawyer. The applicant repeated this request on 16 September 1988.

On 19 September 1988 the case-file was transmitted to the Graz

District Court. It was returned to the Salzburg Regional Court on 7

October 1988.

On 14 March 1989 the applicant filed a request temporarily to

suspend the obligation to report weekly to the police in order to

participate in the hearing before the Commission in Strasbourg in

Application No. 11894/85. Following a first examination of the request

by the Public Prosecutor's Office on 23 March 1989, the applicant's

lawyer was requested on 30 March 1989 to submit a copy of the

Commission's invitation for the hearing, and to explain whether the

applicant's personal appearance before the Commission would be

necessary.

The applicant's lawyer submitted the necessary documents on 3

April 1989; she also stated that the applicant's presence at the

hearing would be desirable but was not imperative.

On 5 April 1989 the case-file was transmitted to the Federal

Ministry of Justice for the preparation of the hearing on 8 May 1989.

It was returned to the Salzburg Regional Court on 14 April 1989.

On 21 April 1989 the Salzburg Regional Court temporarily

suspended the applicant's obligation to report to the police in order

to enable him to participate in the hearing before the Commission in

Strasbourg.

On 23 May 1989 the Graz Federal Police Direction informed the

Salzburg Regional Court that after the hearing the applicant had

immediately returned to Graz and reported to the police on 9 May 1989.

The reasons of the judgment, numbering 69 pages, were served on

the applicant on 1 June 1989.

III.

On 15 June 1989 the applicant filed a plea of nullity and an

appeal to the Austrian Supreme Court (Oberster Gerichtshof). In his

plea of nullity, the applicant complained, inter alia, that certain

witnesses had not been heard, that the reasons of the judgment of 26

May 1988 were incomplete and contradictory, and that the evidence

compiled had been incorrectly assessed. In his appeal he requested a

reduction of the sentence.

On 4 July 1989 a bank acting as private party to the proceedings

filed a statement on the applicant's appeal and plea of nullity. On

5 July 1989 the various remedies were brought before the Supreme Court.

The Supreme Court dismissed the applicant's plea of nullity on

14 September 1989 and transferred the appeal for decision to the Linz

Court of Appeal.

On 3 October 1989 the applicant requested termination of the

obligation to report to the police. On 9 October 1989 the Public

Prosecutor's Office opposed this request in view of the prison sentence

imposed on the applicant.

On 18 October 1989 the Salzburg Regional Court dismissed the

applicant's request.

On 23 October 1989 the Linz Court of Appeal, after conducting an

appeal hearing, partly upheld the applicant's appeal. It considered

mitigating circumstances and also "the long period of time since the

offence" ("die lange Zeit seit der Tat") and the applicant's good

conduct since his release and reduced his previous sentence to four

years. The reasons of the appeal decision, numbering five pages, were

served on the applicant on 22 November 1989.

IV.

On 17 November 1989 the Salzburg Regional Court ordered the

applicant within a month to commence serving the remaining prison

sentence amounting to one year, ten months, twenty seven days and

seventeen hours.

Upon the applicant's further request, the Regional Court on 16

May 1990 changed this prison sentence for a probation period of three

years into a conditional one in view of the fact that the applicant had

already served half the sentence.

COMPLAINTS

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

Convention of the length of the entire proceedings. He refers in

particular to the preliminary investigations which lasted one year, to

the trial which on 11 June 1986 was adjourned for two years, and to the

delay of one year for the preparation of the written reasons of the

judgment of 26 May 1988.

With regard to the delay in the preparation of the written

reasons of the judgment, the applicant also relies on Article 5 para.

3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 April 1990 and registered

on 11 June 1991.

On 10 October 1990 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were received by letter dated 11

January 1991 and the applicant's observations were dated 18 April 1991.

On 9 April 1991 the Commission decided to refer the application

to the First Chamber.

THE LAW

1.The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention of the length of the criminal proceedings in which he was

involved, in particular of the delay in the preparation of the written

reasons of the judgment.

The Commission has examined these complaints under Article 6

para. 1 (Art. 6-1) of the Convention which states, insofar as relevant:

"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."

2. The applicant submits that he can claim to be a victim of a

violation of the Convention as regards the length of the proceedings.

In his view, it cannot be said that the violation has been redressed

on the national level.

The Government submit that the applicant cannot claim to be a

victim within the meaning of Article 25 (Art. 25) of the Convention.

Reference is made to the fact that on 23 October 1989 the Linz Court

of Appeal reduced the applicant's sentence, and that eventually the

remaining prison sentence was changed for a probation period of three

years to a conditional one.

Under Article 25 para. 1 (Art. 25-1) of the Convention the

Commission may only deal with an application where a person "(claims)

to be the victim of a violation by one of the High Contracting Parties

of the rights set forth in (the) Convention". The Commission recalls

that in cases such as the present one the person aggrieved ceases to

be a victim when the national authorities admit a breach of Article 6

para. 1 (Art. 6-1) of the Convention and furthermore grant redress

therefor (see Eur. Court H.R., Eckle judgment of 15 July 1982, Series

A no. 51, p. 31, para. 67).

In the present case the Commission notes that the Linz Regional

Court in its decision of 23 October 1989 justified reduction of the

applicant's prison sentence by referring to "the long period of time

since the offence". However, in the Commission's opinion this cannot

be taken as amounting to a finding that the Regional Court acknowledged

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

Commission need not therefore further examine whether adequate redress

was granted.

It follows that the applicant can still claim to be a victim

within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention.

3. The applicant submits that the present application differs from

Application No. 11894/85 which concerned primarily the length of his

detention on remand and the fairness of proceedings before the Linz

Court of Appeal.

The applicant further submits that the remedies which he filed

in order to make use of his rights of defence cannot be regarded as the

reason for the length of the proceedings. It would have been possible

for the authorities to prepare photocopies of the file. The fact that

the case-file was transferred to Graz from 19 September until 7 October

1988 can also not explain the length of the proceedings.

The Government submit that the applicant's present complaint

concerning the length of criminal proceedings has already been dealt

with by the Commission in its decision of 8 May 1989 as to the

admissibility of Application No. 11894/85. In the Government's

opinion, therefore, the application is substantially the same as

Application No. 11894/85 within the meaning of Article 27 para. 1 (b)

(Art. 26-1-b) of the Convention. The Government further submit that

the Linz Court of Appeal gave its decision on 23 October 1989, i.e. six

months after the Commission's decision on 8 May 1989, and seventeen

months after the judgment of the Salzburg Regional Court of 26 May

1988. It cannot therefore be said that the period under examination

became substantially longer.

The Government further recall that in its previous decision

concerning Application No. 11894/85 the Commission considered that the

case raised complex issues. In this respect the Government emphasise

that the judgment of 26 May 1988 comprised 69 pages. With regard to

the period after 26 May 1988 the Government submit that delays occurred

as the case-file had to be transmitted to Graz for consultation by the

applicant's lawyer. Moreover, the applicant's request provisionally

to suspend his obligation to report to the police in order to

participate in the hearing before the Commission in Strasbourg also

contributed to the delay.

The Commission recalls that in its previous decision concerning

Application No. 11894/85 it examined the applicant's complaint under

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

of the criminal proceedings in which the applicant was involved. At

that time the proceedings were still pending before the Austrian

courts. As a result the Commission on 8 May 1989 declared that part

of the application inadmissible as at that stage being manifestly ill-

founded. Insofar as the present application concerns the same period

it would therefore be substantially the same as the previous

application within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

Although the facts of the present application partly relate to

the period taken into consideration in the previous application, the

Commission is now confronted with a different period of time. In

particular, the Commission is called upon to examine whether the entire

set of the criminal proceedings instituted against the applicant,

including the delivery of the judgment and the plea of nullity and

appeal proceedings, complied with the requirements under Article 6

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

The Commission, having regard to the parties' submissions under

Article 6 para. 1 (Art. 6-1) of the Convention, considers that these

complaints raise serious issues of fact and law which require an

examination of the merits. The application cannot now be declared

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

(Art. 27-2) of the Convention.

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. de Salvia) (J.A. FROWEIN)

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T. v. AUSTRIA

T. v. AUSTRIA

LEXI