Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15883/89

by Friedrich Wilhelm KREMZOW

against Austria

The European Commission of Human Rights (Second Chamber)

sitting in private on 10 September 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 22 November 1989

by Friedrich Wilhelm KREMZOW against Austria and registered on

11 December 1989 under file No. 13715/88;

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 1938, is an Austrian national. At

present he is serving a life sentence for murder in the prison of

Vienna-Mittersteig. In the present proceedings before the Commission,

the applicant has been represented by Mr. W.L. Weh, a lawyer

practising in Bregenz, since 6 November 1990.

The applicant has lodged further applications with the

Commission, which concern criminal proceedings leading to his

conviction of murder (No. 12350/86) and the length of civil

proceedings (No. 13715/88) and are still pending before the

Commission.

In January 1983 the applicant reported to the Tax Office

(Finanzamt) for the 1st District of Vienna about tax evasion committed

in connection with his professional activities for a lawyer.

On 17 February 1983 the Tax Office, having heard the applicant

on 9 February 1983 on his professional activities, instituted criminal

proceedings under the Code of Financial Offences (Finanzstrafgesetz)

against the applicant on the suspicion of having committed tax evasion

in connection with his failure to submit tax declarations for the

years 1977-81.

On 1 March 1983 the applicant was heard by the Tax Office on

the charges against him. After further investigations (requests for

information from banks, hearing of witnesses etc.) he was again heard

on 13 and 22 June 1983.

On 3 October 1983 the tax assessments concerning the period

from 1978 until 1982 were issued against the applicant. The

applicant's appeals in the tax proceedings were dismissed in August

1985 and June 1987, respectively.

On 9 March 1984 the Vienna Regional Directorate of Finance

(Finanzlandesdirektion), upon the applicant's complaint of 4 March

1984, ordered the Tax Office to report his case without delay to

the Public Prosecutor's Office (Staatsanwaltschaft). The Directorate

referred in this respect to the amount of taxes fixed in the

assessments of October 1983.

On 11 April 1984 the Tax Office reported the case, which it

considered clearly within the competence of the courts, to the Vienna

Public Prosecutor's Office, where it was received on 18 April 1984.

On 31 January 1985 the Senior Public Prosecutor's Office

(Oberstaatsanwaltschaft) dismissed the applicant's hierarchical

complaint (Aufsichtsbeschwerde) about the delay of the proceedings at

the Public Prosecutor's Office.

On 6 September 1985 the Vienna Public Prosecutor's Office

requested the Investigating Judge at the Vienna Regional Court

(Landesgericht) to carry out preliminary investigations (gerichtliche

Vorerhebungen), in particular to hear the applicant, to produce

several files concerning other proceedings and to issue a search

warrant as regards a safe.

On 25 September 1985 the Investigating Judge ordered that the

applicant's statements in the proceedings before the Tax Office and

his criminal records be produced.

On 28 February 1986 the Review Chamber (Ratskammer) at the

Vienna Regional Court dismissed the applicant's appeal (Beschwerde) of

January 1986 against the above decision of the Investigating Judge.

Plans to hear the applicant on 27 May and 11 June 1986

were cancelled by the Investigating Judge on the grounds that he had

to fulfil other official obligations, or that the applicant could not

brought from prison in court.

On 21 July 1986 the Vienna Regional Court dismissed the

applicant's request of 3 July 1986 to discontinue the proceedings

against him in view of the sentence to life imprisonment imposed by

the Korneuburg Regional Court on 18 December 1984.

On 28 October 1986 the Investigating Judge informed the

applicant that a further hearing fixed for 4 November 1986 was

cancelled due to his workload.

On 6 November 1986 the applicant informed the Court that he

would make his submissions at the trial, and refused to make any

statements in the investigation proceedings. At the same time he

revoked his earlier submissions made before the Tax Office. Thereupon

the Investigating Judge forwarded the files to the Public Prosecutor's

Office.

On 5 December 1986 the Vienna Public Prosecutor's Office

preferred an indictment against the applicant, charging him with tax

evasion under S. 33 of the Code of Financial Offences. The applicant

was charged with having evaded tax in the period of 1979 to 1982 of a

total amount of AS 678,143. The indictment was served upon the

applicant on 5 January 1987.

On 20 January 1987 the bill of indictment was transmitted to

the Presiding Judge of the Vienna Regional Court, sitting as court

with lay assessors (Schöffengericht).

On 26 January 1987 the Regional Court fixed 4 March 1987 as

date for the trial, and ordered that the files concerning the criminal

proceedings before the Korneuburg Regional Court concerning murder be

produced. It also summoned the applicant.

On 18 February 1987 the Committee (Ausschuß) of the Lawyers'

Association (Rechtsanwaltskammer) for Vienna, Lower Austria and

Burgenland, upon instruction by the Vienna Regional Court, appointed

an official defence counsel for the applicant.

At the trial on 4 March 1987 the Regional Court dismissed the

applicant's complaints about the composition of the Court as regards

the lay assessors, and his request to release his official defence

counsel in order to allow him to defend himself in person. His

request that psychiatric expert evidence on his criminal

responsibility be taken, and that he be entitled to propose three

experts, as well as that files concerning two other proceedings be

produced, were granted. The trial was postponed sine die.

On 16 March 1987 the applicant appealed against the

appointment of the official defence counsel.

On 6 April 1987 the applicant required an extension of the

time-limit to propose the psychiatric experts.

On 13 May 1987 the Vienna Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal of 16 March 1987 concerning the

appointment of counsel.

On 1 June 1987, following a reminder by the Regional Court,

the applicant proposed three experts.

On 25 June 1987 the Regional Court informed the applicant that

the expert S., one of the three experts named by him, was likely to be

appointed.

On 14 July 1987 the Regional Court refused the applicant's

request for a further time-limit to specify further evidence in

connection with the expert opinion.

On 21 August 1987 the applicant made further submissions in

his defence, requested that a new date for the trial be fixed and

various other files be produced. The latter was ordered by the Court

on 25 August.

On 21 September and 13 October 1987 the applicant again

requested the Regional Court to fix a new date for the trial.

On 16 October 1987 the Regional Court appointed the psychiatric

expert S. and instructed him to deliver, within three months, an expert

opinion on the applicant's criminal responsibility and capacity to

participate in the proceedings. The files, including those produced

upon the applicant's requests, were submitted to the expert.

On 28 October 1987 the applicant appealed against the Regional

Court's decision of 16 October 1987, raising objections to the

questions submitted to the expert.

On 29 October 1987 the Regional Court, in view of the appeal,

requested the expert to return the files. The files were received on

14 December 1987.

On 16 December 1987 the Austrian Administrative Court

(Verwaltungsgerichtshof), upon the applicant's appeal against the

appointment of counsel by the Lawyers' Association, quashed the

decision. The Administrative Court found that it had been taken by an

incompetent authority, namely the plenary Committee instead of a

Department of the Committee.

On 17 December 1987 the applicant lodged a hierarchical

complaint with the Court of Appeal about the conduct of the

proceedings.

On 29 December 1987 the Vienna Court of Appeal declared the

applicant's appeal against the decision of 16 October 1987

inadmissible. It also found that thus no supervisory measures were

necessary. The decision was served upon the applicant on

4 January 1988.

On 13 January 1988 the files were again sent to the expert S.

On 14 January 1988 the applicant again lodged a hierarchical

complaint with the Vienna Court of Appeal.

On 1 February 1988 the Regional Court, therefore, again

requested the expert S. to return the files.

On 11 March 1988 the Regional Court reminded the expert to

return the files, which were received back on 15 March 1988.

On 21 April 1988 the Vienna Court of Appeal, having regard to

reports of the President of the Regional Court and the Presiding

Judge, respectively, found that there was no reason to take

supervisory measures. The decision was received by the applicant on

27 April 1988.

On 28 April 1988 the files were sent to the expert for the

third time.

Until December 1988 the applicant repeatedly urged the fixing

of a trial.

On 7 December 1988 the Regional Court received an interim

report of the expert S. who requested an extension of the time-limit

to submit his opinion on the ground of the particular circumstances of

the applicant's case. The request was granted and the applicant

informed accordingly.

On 20 December 1988 the Regional Court requested the expert S.

to return the tax files required by the Tax Office. On 10 February

1989 the Regional Court reminded the expert to return the tax files.

On 23 January 1989 the applicant again requested the fixing of

a date for the trial, and also asked for a copy of the expert opinion.

On 14 February 1989 the applicant asked for a meeting with the

Presiding Judge and requested permission to consult all files. On 24

February 1989 he was informed that the files were still with the

expert.

On 21 March, 26 April and 26 May 1989 the Regional Court

requested the expert S. to deliver his opinion.

On 12 April 1989 the applicant, who had in the meantime

repeatedly requested the fixing of a trial, lodged a hierchical

complaint with the Vienna Court of Appeal concerning the delay in the

criminal proceedings.

On 30 June 1989 the expert S. delivered his opinion according

to which the applicant did not suffer from any mental disorder

excluding his criminal responsibility. The expert also returned all

files.

On 4 July 1989 the applicant applied to the Federal Ministry

of Justice (Bundesministerium der Justiz) suggesting that it should

annul the pending proceedings as a measure of grace.

On 12 July 1989 the Court of Appeal refused supervisory

measures on the ground that the expert had meanwhile submitted his

opinion. The Court of Appeal also noted that the President of the

Vienna Regional Court was informed about the delays which had occured

so far. It assumed that further procedural steps could thus be

expected as soon as possible. The decision was served upon the

applicant's counsel on 13 July 1989, the applicant himself received it

on 18 July 1989.

On 30 July 1989 the expert opinion was sent to the applicant's

defence counsel.

On 1 August 1989 the applicant again urged the Regional

Court to fix the trial date. On 14 August 1989 he complained again

with the Court of Appeal as regards the fixing of a date for trial.

On 17 August 1989 the Vienna Public Prosecutor's Office

informed the Regional Court inter alia about proceedings pending with

regard to the applicant's request of 4 July 1989, namely to annul the

proceedings.

On 4 September 1989 the Regional Court reported to the Court

of Appeal that, having regard to the pending annulment proceedings, it

had not considered the fixing of a date for trial appropriate.

On 10 October 1989 the Federal Ministry of Justice dismissed

the applicant's request to annul the proceedings concerning tax

evasion. The applicant was informed on 25 October 1989.

On 10 November 1989 the Vienna Court of Appeal, upon the

applicant's complaint of 14 August 1989, instructed the Regional Court

to decide within four weeks upon the applicant's request of

13 February 1989 to consult the files. The remaining complaints

were dismissed. The decision was served upon the applicant on

17 November 1989.

On 11 December 1989 the Vienna Public Prosecutor's Office

informed the Regional Court that on 10 October 1988 the Federal

Ministry of Justice had refused to annul the proceedings.

On 12 December 1989 the Regional Court dismissed the

applicant's request to consult the file. The applicant appealed on

21 December 1989.

On 2 January 1990 the applicant, in accordance with S. 91 of

the Organisation of Courts Act (Gerichtsorganisationsgesetz), which

had entered into force on 1 January 1990, requested the Court of

Appeal to fix a time-limit by which the trial should be held by the

Regional Court.

On 23 January 1990 the Regional Court granted the applicant

the right to consult the files and sent them to Mittersteig Prison.

On 8 February 1990 the applicant challenged the Presiding

Judge O. and the Judge R. at the Vienna Court of Appeal for bias, and

lodged a disciplinary complaint against his official defence counsel.

On 19 February 1990 the files were returned to the Regional

Court.

On 20 February 1990 the applicant requested the Regional Court

to discontinue the proceedings. The Court thereupon sent the files to

the Public Prosecutor's Office and the Attorney General

(Generalprokurator), respectively. On 29 March 1990 the Regional

Court was informed of their decision that prosecution should be

continued.

On 20 April 1990 the Regional Court fixed 4 July 1990 as date

for the trial.

On 1 June 1990 an official defence counsel was appointed.

On 13 June 1990 the Review Chamber dismissed the applicant's complaint

about the appointment of counsel.

At the same date, the President of the Regional Court

dismissed the applicant's request of 8 May 1990 in which he had

claimed information relating to the composition of the Regional Court

in respect of the lay assessors.

On 15 June 1990 the Regional Court forwarded the applicant's

request of 3 January 1990 concerning the fixing of a trial to the

Court of Appeal. Comments and the files were included.

On 28 June 1990 the Court of Appeal dismissed the applicant's

request under S. 91 of the Organisation of Courts Act as well as

further hierarchical complaints of 11 June 1990.

On 4 July 1990 the trial was postponed sine die in order to

appoint another defence counsel for the applicant. Previous counsel

had been called as witness for the defence. Various requests by the

applicant, inter alia concerning the appointment of the lay assessors,

were dismissed.

On 28 August 1990 the Vienna Court of Appeal, upon the

applicant's appeal against the refusal of information about the

composition of the Regional Court, quashed the decision of the

President of 13 June 1990 and sent the matter back for a new decision.

From 5 July until 10 September 1990 the files concerning the

earlier criminal proceedings before the Korneuburg Regional Court,

which led to the applicant's conviction for murder, were with the

Federal Ministry of Justice and the Federal Chancellery (Bundes-

kanzleramt) in the context of the applicant's parallel proceedings

before the Commission (Application No. 12350/86).

On 25 September 1990 the applicant again requested the Vienna

Court of Appeal under S. 91 of the Organisation of Courts Act to set

the Regional Court a time-limit for a new trial. He sent his

submissions both directly to the Court of Appeal as well as via the

Regional Court. The Vienna Court of Appeal dismissed the above request

on 30 October 1990.

According to a file note of 5 November 1990 the Regional Court

dropped its plan to hold trial on 3 and 5 December 1990 on the ground

that the criminal files concerning the proceedings for murder had to

be returned to the Korneuburg Regional Court.

Furthermore, on 5 November 1990 the Regional Court dismissed

the applicant's request of 31 July 1990 to have, at the next trial,

particularly skilled shorthand writers. It also forwarded the

applicant's request of 25 September 1990 concerning the fixing of a

time-limit under S. 91 of the Organisation of Courts Act to the Vienna

Court of Appeal. The Regional Court received the Court of Appeal's

decision on that matter, which had been taken on 30 October (see

above), on 6 November 1990.

On 13 November 1990 the Vienna Court of Appeal requested the

Regional Court to comment upon the late transmission of the applicant's

request of 25 September 1990 and upon the envisaged date for a trial.

On 21 November 1990 the applicant requested the Attorney

General to lodge a plea of nullity for the preservation of the law

(Nichtigkeitsbeschwerde zur Wahrung des Gesetzes).

On 7 December 1990 the Court of Appeal instructed the Regional

Court to fix, within six weeks, a date for the trial.

From 11 December 1990 until 3 January 1991 the files were

forwarded to the Federal Ministry of Justice in the context of the

present proceedings before the Commission.

The new trial was fixed for 3 and 5 April 1991.

COMPLAINTS

The applicant complains that the criminal charge against him

under the Code of Financial Offences has not been terminated within a

reasonable time, as required by Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 November and registered

on 11 December 1989.

On 10 October 1990 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits.

The Government's observations were submitted on 28 January

1991, and the applicant's submissions in reply on 7 March 1991.

On 27 May 1991 the Commission referred the application to its

Second Chamber.

THE LAW

The applicant complains about the length of criminal

proceedings against him concerning offences under the Code of Financial

Offences. He relies on Article 6 para. 1 (Art. 6-1) of the Convention

which, insofar as relevant, provides 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."

The Government submit that the starting point for the relevant

period to be considered under this provision was at the earliest when

the Tax Office reported the applicant's case to the Public

Prosecutor's Office, and subsequently preliminary investigations were

conducted by the Vienna Regional Court.

Furthermore, the Government consider that the length of the

proceedings, in the circumstances of the present case can still be

considered as reasonable. They submit that delays of the proceedings

were due to the applicant's conduct, in particular his numerous

appeals, complaints and resort to other remedies. Some of his

requests, he could have submitted earlier in writing, e.g. his request

at the trial to take expert evidence as regards his criminal

responsibility. The Public Prosecutor's Office and the Courts cannot

be held responsible for the legth of the proceedings, all decisions

and measures were taken immediately and without delay.

The Commission finds that the applicant's complaint about the

length of the criminal proceedings against him raises questions 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 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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KREMZOW v. AUSTRIA

KREMZOW v. AUSTRIA

LEXI