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M. v. AUSTRIA

Doc ref: 15615/89 • ECHR ID: 001-819

Document date: January 15, 1991

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M. v. AUSTRIA

Doc ref: 15615/89 • ECHR ID: 001-819

Document date: January 15, 1991

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 15615/89

by M.

against Austria

The European Commission of Human Rights (Second Chamber)

sitting in private on 15 January 1991, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

F. ERMACORA

G. JÖRUNDSSON

A. WEITZEL

Mrs. G. H. THUNE

Mr. F. MARTINEZ RUIZ

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 14 September

1989 by M. against Austria and registered on 13 October 1989 under

file No. 15615/89;

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 applicant is an Austrian citizen born in 1943. He lives in

Vienna. He is represented in the proceedings before the Commission by

Mr. K. Bernhauser, lawyer, of Vienna.

The facts submitted may be summarised as follows.

An indictment was brought against the applicant on 26 August

1987, accusing him of involvement with insurance fraud. 14 other

persons were also charged. The applicant's trial before the Vienna

Regional Court (Landesgericht) began, apparently, in January 1988, and

the applicant was convicted and sentenced on 5 April 1988. The

applicant gave notice of appeal (Berufung) and plea of nullity

(Nichtigkeitsbeschwerde) within the specified three day time-limit.

By virtue of Article 270 of the Code of Criminal Procedure

(Strafprozessordnung), the written judgment should have been prepared

within 14 days. It was served on him on 31 January 1990. On 6

September 1990 the applicant's plea of nullity was rejected and his

sentence was reduced by the Supreme Court (Oberster Gerichtshof).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 September 1989 and

registered on 13 October 1989.

On 2 April 1990 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit observations on its admissibility and merits.

The respondent Government's observations were submitted on 15

June 1990 and the applicant's reply on 18 July 1990.

The application was referred to the Second Chamber on 7

November 1990.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention of the length of the above criminal proceedings, in

particular the delay between his conviction and sentence on 5 April

1988 and the written judgment, which was served on 31 January 1990.

THE LAW

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

the Convention that the written judgment of his conviction of 5 April

1988 was served on him only on 31 January 1990. Article 6 para. 1

(Art. 6-1) provides, as far as relevant, as follows:

"In the determination of his civil rights and obligations or

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.

Moreover, the Government do not contest the admissibility of the

application.

The Government do, however, consider that the time taken for

the preparation of the judgment was not unreasonable. In particular,

they underline that the applicant agreed that the various defendants

should be heard separately and that separate judgments be announced in

the case of each. Further, the applicant agreed that, if an appeal

was to be made, one appeal would be made for all defendants.

Accordingly, the period to be taken into consideration could only

begin at the date of the last judgment, that is, 6 September 1988. A

certain period would inevitably be necessary for the preparation of

the judgments. The Government consider that the subject matter of the

proceedings was undoubtedly complicated, and that the judge was

required to consider a large amount of documentation. They further

underline that the applicant at no stage requested accelerated

production of the judgment. Finally, the Government point out that no

new cases were alloted to the judge for various periods from 11 April

1988; that the judge was removed from his position as Head of one

section of the courts and that disciplinary proceedings were

introduced against him because of the delays involved in preparing

judgments in this complex of cases.

The applicant accepts that he had agreed to the proceedings

against the various defendants being conducted separately and that he

thereby saved considerable defense costs, but emphasises that it was

not made clear that this would mean a delay in the preparation of the

judgment.

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 taken for preparation of the

written judgment. The Commission finds that the case raises questions

of fact and law which are of such complexity that the determination

requires an examination of 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 unanimously

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the President of the

Second Chamber Second Chamber

(K. ROGGE) (S. TRECHSEL)

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