Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15321/89

by Franz SCHIEHSER

against Austria

The European Commission of Human Rights sitting in private on

16 October 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 April 1989

by Franz Schiehser against Austria and registered on 31 July 1989 under

file No. 15321/89;

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 1 October 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

6 February 1991 and the observations in reply submitted

by the applicant on 27 March 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a retired civil servant, is an Austrian citizen,

born in 1920 and living in Vienna. He is represented by Mr. F.C.

Obendorfer, a lawyer in Vienna.

The facts as agreed between the parties may be summarised as

follows.

On 20 March 1980 a search and seizure was effected by the

prosecution branch of the Austrian tax authorities (Finanzstraf-

behörde) on the premises of the enterprise M.K., a construction firm.

It followed from the documents seized that the enterprise had paid

bribe money (Schmiergeldzahlungen) to various civil servants, inter

alia two payments in 1976 and 1978 to the applicant.

On 24 October 1980 the police laid charges against the

applicant and on 7 July 1981 an indictment was filed accusing the

applicant of two counts of taking bribes (Geschenkannahme).

On 17 October 1981 the investigating judge submitted the case

to the trial court (Schöffengericht) in order to fix a date for the

hearing. Fifty other cases were disconnected from the proceedings

against the applicant.

On 15 November 1981 the Public Prosecution (Staatsanwaltschaft)

in Vienna requested supplementary preliminary investigations as there

was then suspicion that the applicant had been corrupted by taking the

bribes (pflichtwidrige Vornahme oder Unterlassen von Amtsgeschäften).

The request was granted and the files retransmitted to the

investigating judge on 26 November 1981.

On 12 November 1985 another indictment was filed against the

applicant and twelve other civil servants.

The trial was fixed to take place between 6 November and 12

December 1986. However, on 6 November 1986 the proceedings against the

applicant had to be severed from those against the others due to his

illness.

The trial against the applicant started on 2 December 1987 and

had to be postponed sine die because of a request made by the defence

for the taking of further evidence. On 16 June 1988 the applicant was

convicted by the Vienna Regional Court (Landesgericht) on two counts

of taking bribes (Geschenkannahme durch Beamte) and sentenced to two

months' imprisonment. He was granted a two-year period of probation.

He was acquitted of a further charge of taking bribes.

According to the findings of the trial court, based on the

testimony of several witnesses and documentary evidence, the applicant

had, when working as a civil servant in the Federal Administration of

Public Buildings (Bundesgebäudeverwaltung), accepted bribes on 16

December 1976 in the amount of 7,100 AS and a further sum of 1,050 AS

in the course of 1978. The money was paid by the construction firm

M.K. which had received construction orders from the Federal

Administration of Public Buildings. These payments had been entered

in a notebook in which the owner of the firm, Mrs. K., had recorded

cash payments made to various civil servants, inter alia the applicant.

In most cases she had also noted the percentage figure which the

payment represented in relation to the value of the order received.

Mrs. K. could not be heard before the trial court because she had

suffered a depression. During the pre-trial proceedings she had stated

that the entries in the notebook corresponded in reality to private

withdrawals for her own purposes which, however, she wanted to conceal

from her employee dealing with the bookkeeping. The trial court

considered these allegations to be incredible as Mrs. K., as owner of

the firm, had no reason to conceal private withdrawals in this manner.

In particular the notebook did not form part of the firm's official

bookkeeping but was intended only to keep Mrs. K. informed of her

private spending. She had no obligation to render account to her

employee of her expenditures.

Having regard to a medical expert opinion, the trial court

further considered that Mrs. K. was not mentally ill at the time when

the relevant payments were effected and recorded in her notebook.

Insofar as witness N., Mrs. K.'s employee, had confirmed that

in her opinion the entries in Mrs. K.'s notebook did not relate to

bribe money but to private expenditures, the trial court considered

that this was a mere assumption of N. which, in the light of all the

circumstances, was absurd and unrealistic.

On the other hand the trial court considered credible the

statements of witness E. Kl. who had effected the payments and had

incriminated the applicant in the pre-trial proceedings. At the trial

he had declared that he no longer remembered all the details of the

various bribe payments but he could confirm that his former statements

relating to the applicant were correct.

The trial court took into account as mitigating circumstance

that the offences in question had been committed a long time ago and

that the applicant's conduct before the offences as well as thereafter

had been correct.

The applicant lodged an appeal (Berufung) and a plea of nullity

(Nichtigkeitsbeschwerde) arguing that his conviction was unfounded,

that relevant facts had been disregarded, that the medical expert

opinion had to be interpreted as indicating that the witness, Mrs. K.,

had been mentally ill for about thirty years, and that circumstances

discharging him had not been considered.

On 24 November 1988 the Supreme Court (Oberster Gerichtshof)

dismissed both remedies. The Court stated inter alia that the judgment

appealed from was in line with the expert opinion in which it was

unequivocally stated that the expert had found nothing to show that

Mrs. K. was mentally ill at the time when she recorded the payments in

question.

The chronology of the events is listed in the attached

time-table.

COMPLAINTS

The applicant complains that he was convicted on the basis of

vague documents written by a mentally insane person whom he did not

have the opportunity to cross-examine at the trial. He further

complains of the length of the criminal proceedings.

He invokes Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 April 1989 and registered

on 31 July 1989.

On 1 October 1990 the Commission decided to communicate the

complaint on the length of the proceedings for observations on

admissibility and merits. After an extension of the time-limit the

respondent Government submitted their observations on 6 February 1991

and the applicant replied on 27 March 1991.

THE LAW

1. The applicant mainly complains of the length of the criminal

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

(Art. 6-1) of the Convention, which provides that:

"In the determination of any criminal charge

against him everyone is entitled to a ...

hearing within a reasonable time by ... [a]

tribunal."

The Commission first observes that according to the

Government's submissions the criminal proceedings in question were

initiated with the Vienna Regional Court by the police on 24 October

1980. They ended with the Supreme Court's decision of 24 November 1988

and thus lasted eight years and one month.

The Commission notes that the sentence was mitigated on account

of the fact that the offences had been committed a long time ago.

However, the mitigation of the sentence alone does not deprive the

applicant of the status as "victim" (Eur. Court H.R., Eckle judgment

of 15 July 1982, Series A No. 51, p. 30, para. 66).

The Commission has taken into account the parties' observations

as to the reasonableness of the period in question. A preliminary

examination of the application does not disclose sufficient

justification for the delays that occurred in the proceedings. The

Commission therefore considers that the question of whether the length

of the proceedings in the present case exceeded the reasonable time

provided for in Article 6 para. 1 (Art. 6-1) of the Convention raises

serious points of fact and law which cannot be resolved at this stage

in the proceedings, but necessitate a thorough examination of the

merits of the case.

The Commission further observes that there are no other grounds

for considering this complaint inadmissible.

2. The Commission has examined the applicant's remaining

complaint, but finds that the applicant's submissions do not disclose

any appearance of a violation of the Convention. The Commission notes

in particular that the applicant's conviction was not only based on

Mrs. K.'s pre-trial statements but also on documentary evidence and the

statements of the witness E. Kl.

It follows that to this extent the application has to be

rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention as being manifestly ill-founded.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE INSOFAR

AS IT CONCERNS THE LENGTH OF THE PROCEEDINGS,

without prejudging the merits;

DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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SCHIEHSER v. AUSTRIA

SCHIEHSER v. AUSTRIA

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