Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15548/89

by J.N.

against Austria

The European Commission of Human Rights (Second Chamber)

sitting in private on 14 October 1991, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

G. SPERDUTI

G. JÖRUNDSSON

A. WEITZEL

H. G. SCHERMERS

Mrs. G. H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

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 3 July 1989 by

J.N. against Austria and registered on 28 September 1989

under file No. 15548/89;

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 facts of the case, as they have been submitted by the

parties, may be summarised as follows:

The applicant, born in 1926, is an Austrian national and

resident in Graz. He is a businessman by profession. Before the

Commission he is represented by Mr. F. Unterasinger, a lawyer

practising in Graz.

In February 1981 the Graz Regional Court (Landesgericht)

first opened settlement proceedings (Ausgleichsverfahren) concerning

the applicant's assets, then bankruptcy proceedings concerning his

firm producing equipment for brickyards.

In March and April 1981, in the context of bankruptcy

proceedings concerning a firm dealing in bricks (VZ), several persons

laid information against the managers of the applicant's firm, MM. V.

and B., for fraud. In July 1981 the trustee in the above-mentioned

bankruptcy proceedings laid information against MM. S. and St. for

fraud and fraudulent conversion. The Graz Regional Court, upon request

of the Graz Public Prosecutor's Office (Staatsanwaltschaft), ordered

various investigation measures in July and August 1981. In

particular, various places were searched, documents seized, and B., S.

and St. were taken into detention on remand (St. was released in

September 1981, S. in December 1981, B. in May 1982). Investigations

were extended against a further suspect. The suspects and various

witnesses were heard.

On 8 September 1981, in the context of these investigations,

the Graz Regional Court requested the Graz Federal Police Department

(Bundespolizeidirektion) to inspect a credit account of the applicant

and related documents, and to produce copies thereof. On 15 September

1981 the Regional Court instructed the Police Department to inspect a

bills account concerning the discounting of bills related to the

applicant and the above-mentioned bankrupt firm, and to produce copies

thereof. On 19 October 1981 the Graz Federal Police Department

submitted its report on the result of its investigations. The

Regional Court continued its investigations.

On 27 January 1982 the accountant expert submitted his opinion

concerning questions of the indebtedness of the above-mentioned firm

VZ (more than AS 93 million) and its insolvency.

On 8 April 1982 the Graz Regional Court heard the applicant

as a witness. The applicant filed various documents.

On 22 April 1982 the Graz Public Prosecutor's Office, having

consulted the files, requested the Graz Regional Court to open

preliminary investigations against the applicant on the suspicion of

having committed fraud in that he had, inter alia, forwarded bills

without relation to real financial transactions, on the suspicion of

fraudulent conversion as accomplice to the criminal offences of the

suspects B. and V. as well as of negligent bankruptcy as regards his own

firm.

On 23 April 1982 the Graz Regional Court, upon request of

the Public Prosecutor's Office, issued search warrants concerning the

applicant's business premises and ordered the seizure of any relevant

accountant documents in the presence of the accountant expert. It also

ordered that the files concerning the bankruptcy of the applicant's and

B.'s firms as well as other files be produced. Moreover, criminal

proceedings were instituted against three further persons.

On 27 April 1982 the Graz Federal Police Department reported

upon the search of the applicant's business premises and the documents

seized.

Furthermore, in the period from April until September 1982 the

Regional Court repeatedly heard the suspects as well as several

witnesses and ordered a banking institute to produce various

documents, in particular those concerning particular business

relations of the applicant, B. and V.

On 22 September 1982 further information concerning fraudulent

conversion was laid against the suspects B. and S.

On 29 October 1982 the Graz Regional Court received a

supplementary opinion of the accountant expert concerning the

financial situation of the applicant's firm.

On 23 November the files were sent for consultation to a civil

department of the Graz Regional Court where they remained until

10 December 1982.

On 19 April 1983 a suspect was heard again. On 26 April 1983

the files were forwarded to the Graz Public Prosecutor's Office. On

20 May 1983 the files were returned with a request to produce all

files concerning the settlement and bankruptcy proceedings of the firms

managed by B., V., St. and the applicant, to produce files concerning

parallel criminal proceedings against some of the suspects, to produce

further specified documents and information, to hear two further

witnesses and to examine again the suspects on the basis of the

investigation results so far.

On 29 July 1983 the applicant was examined as a suspect. He

was informed that preliminary investigations had been instituted

against him. A further suspect and the suspect B. were also heard

again. Other investigations required by the Prosecutor's Office were

completed in the period from 2 September until 3 October 1983. On 4

November 1983 the files were sent to the Public Prosecutor's Office.

On 25 November 1983 the Prosecutor's Office returned the files

and requested again that the files concerning the settlement and

bankruptcy proceedings related to B., V. and the applicant as well as

the other court files concerning the related criminal proceedings be

produced.

Since 15 December 1983 the applicant was assisted by counsel.

On 19 December 1983 the Graz Public Prosecutor's Office

preferred the indictment against the applicant and the co-accused B.

on charges of fraud and fraudulent conversion. It also requested that

the criminal proceedings against the two accused as well as other

suspects concerning various criminal offences be separated. On

9 January 1984 the Graz Regional Court decided accordingly, and the

bill of indictment was served upon the accused.

On 24 and 25 January 1984 the accused lodged objections to the

indictment.

On 9 February 1984 the Graz Court of Appeal (Oberlandes-

gericht) dismissed the objections. The decision was served upon the

accused on 16 February, and on 17 February 1984 the files were

forwarded to the Presiding Judge of the Regional Court, sitting in a

chamber with two lay assessors (Schöffengericht), in order to fix a

date for trial. The competent Judge declared to be biased, and the

case was assigned to another judge on 22 February 1984. Several

persons joined the proceedings as civil parties (Privatbeteiligte).

On 9 July 1984 the applicant requested to take particular

evidence.

On 7 August 1984 the Public Prosecutor's Office requested the

Regional Court to fix a trial as soon as possible.

On 11 October 1984 the Regional Court fixed the period from

5 until 16 November 1984 as date for the trial.

On 23 October 1984 the Public Prosecutor's Office preferred a

supplementary indictment against the applicant on the charge of

negligent bankruptcy, which was joined to the current criminal

proceedings on 29 October 1984.

From 5 until 13 November 1984 the Graz Regional Court held

trial against the applicant and the co-accused B. The Court heard in

particular 23 witnesses and the accountant expert. The verbatim

record comprised 224 pages.

On 13 November 1984 the Graz Regional Court convicted B. of

having committed negligent bankruptcy, failure to pay social security

contributions, fraud on several counts and fraudulent conversion and

sentenced him to six years' imprisonment. The applicant was convicted

of fraudulent conversion in complicity with B. He was sentenced to

three years' imprisonment. As regards the issue of fraudulent

conversion the Regional Court found that in 1980 the applicant, as

general manager of a firm, and in complicity with another person, had

presented an incorrect supplementary bill of more than 28 million AS

in the context of the construction of a brickyard in Crete which the

co-accused, the presiding director of the building enterprise

concerned had fraudulently approved. The Regional Court orally set

out the main reasons for its judgment.

Furthermore, the Regional Court decided, for reasons of

expediency, to separate the proceedings as regards the charge of

bankruptcy as well as some other charges against the applicant and B.

on the ground that further investigations were necessary in these

respects.

The written judgment (51 pages) was given to the Court's

Registry on 29 March 1985, and served upon the accused on 24 May 1985.

On 12 June 1985 the applicant lodged a plea of nullity

(Nichtigkeitsbeschwerde) and appeal (Berufung), and joined various

documents and in particular observations of an accountant as regards

the accountant expert opinion. The co-accused also appealed. The

Regional Court forwarded the appeals to the Supreme Court (Oberster

Gerichtshof) on 27 June 1985.

On 11 April 1986 the co-accused B. filed further submissions.

On 30 June 1986 the Supreme Court, upon the applicant's plea

of nullity, quashed the judgment of 13 November 1984 in respect of the

applicant's conviction. The co-accused's plea of nullity was partly

successful. To this extent, the Supreme Court sent the case back to

the Regional Court. It found in particular that the Regional Court

had failed to establish whether the applicant had known that the

co-accused had acted fraudulently.

On 6 August 1986 the Regional Court received the Supreme

Court's judgment. The files were sent to the Graz Public Prosecutor's

Office on 16 September 1986.

On 27 October 1986 the files were returned to the Graz

Regional Court. The Public Prosecutor's Office requested in

particular that other proceedings be joined and a date for trial be

fixed as soon as possible. The Office also expressly confirmed the

indictment as regards the charge of fraud against the co-accused B.

in that he had presented fictitious assignments, and the charge of

fraudulent conversion against the applicant in that he had presented

an incorrect supplementary bill as accomplice of another suspect. It

further requested that the proceedings against the applicant and B. be

discontinued as regards various other charges, inter alia the charge

of the applicant with negligent bankruptcy.

The applicant filed a request to take particular evidence on

26 November 1986.

On 16 February 1987 the Public Prosecutor's Office requested

the Regional Court to fix a date for trial as soon as possible.

On 14 April 1987 the Regional Court discontinued criminal

proceedings against the accused according to the request of the

Public Prosecutor's Office. The trial was fixed for 6 until 12 May

1987. On 30 April 1987 the applicant again requested to take

evidence.

On 6 until 12 May 1987 the Graz Regional Court held trial.

The trial was continued on 24 and 25 June 1987 with the hearing of

further witnesses.

On 25 June 1987 the Graz Regional Court again convicted the

applicant as accomplice to fraudulent conversion and sentenced him to

two years and nine months' imprisonment. The co-accused was convicted

of negligent bankruptcy and fraudulent conversion and acquitted of

fraud on several counts; he was sentenced to four years and six

months' imprisonment.

On 22 December 1987 the judgment (comprising fifteen pages)

was served upon the accused.

On 8 January 1988 the accused filed their respective pleas of

nullity and appeals, which were forwarded to the Supreme Court on

10 February 1988.

On 27 July 1988 the applicant made submissions and filed in

particular a private expert opinion of a civil engineer.

On 18 October 1988 the Supreme Court, upon the pleas of

nullity and appeals of the applicant and the co-accused, decided that

the criminal proceedings be re-opened under S. 362 para. 1 of the Code

of Criminal Procedure. The Supreme Court thereby quashed the

applicant's and the co-accused's conviction for fraudulent conversion,

and decided that the proceedings be continued at the stage of

preliminary investigations.

S. 362 para. 1, as far as relevant, provides that the Supreme

Court, having heard the Attorney General (Generalprokuratur), may

exceptionally re-open criminal proceedings to the advantage of the

convicted person, if, during the provisional deliberations on a plea

of nullity, or after a public hearing on the plea of nullity, it has

serious doubts as to the correctness of facts upon which the judgment

concerned is based.

On 14 November 1988 the judgment was received by the Graz

Regional Court, which sent the files to the Public Prosecutor's Office

one day later. The Supreme Court's judgment was served upon the

parties on 25 November 1988.

On 14 December 1988 the Public Prosecutor's Office returned

the files and declared that it did not find any reason to continue the

proceedings against the accused on the charge of fraudulent

conversion.

On 27 December 1988 the applicant requested that the criminal

proceedings against him be discontinued.

By letter of 28 April 1989 the Graz Regional Court informed

the applicant that on 5 January 1989 the criminal proceedings against

him for fraudulent conversion had been discontinued.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention and Article 1 of Protocol No. 1 to the Convention about the

length of the criminal proceedings against him. He submits that due

to the length of the criminal proceedings he sustained considerable

financial losses.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 July 1989 and registered

on 28 September 1989.

On 4 December 1989 the Commission decided to bring the

application to the notice of the respondent Government and invite them

to submit written submissions on its admissibility and merits.

On 15 March 1990, after an extension of the time-limit, the

observations were submitted by the respondent Government. On 6 June

1990 the applicant sent his observations in reply.

On 8 January 1991 the Commission decided to refer the

application to the Second Chamber.

THE LAW

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

Convention and Article 1 of Protocol No. 1 (P1-1) about the length of

the criminal proceedings against him.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant,

provides:

"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."

The Government submit that the relevant period to be

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

started on 29 July 1983, when the applicant was informed about the

opening of criminal proceedings against him, and ended on 5 January

1989 when the proceedings were discontinued. Arguing the criteria

established in the case-law of the Convention organs, the Government

consider that the proceedings did not attain an unreasonable length.

In this respect, they point out that the proceedings concerned very

complex facts. In the second set of proceedings before the Regional

Court, the applicant twice made voluminous submissions, and he

submitted observations and a private expert opinion in the second set

of appeal proceedings, which he could have made at an earlier stage of

the proceedings. No undue delays were caused by the Austrian

authorities.

The Commission finds that the applicant's complaint about the

length of the criminal proceedings against him raises 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. No other ground

for declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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