Lexploria

SECOND CHAMBER

AS TO THE ADMISSIBILITY OF

Application No. 12973/87

by Franz MATHES

against Austria

The European Commission of Human Rights (Second Chamber)

sitting in private on 5 December 1990, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

F. ERMACORA

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

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 6 April 1987 by

Franz MATHES against Austria and registered on 6 June 1987 under file

No. 12973/87;

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 submitted by the parties may be summarised as

follows:

The applicant is an Austrian citizen born in 1920 who resides

in Vienna. He was a practising lawyer before 1985 when he had to

retire for health reasons. He is represented before the Commission by

Mr. C. Prem, lawyer, of Vienna.

In 1977-78 the applicant represented an investment company

which inter alia arranged loans for its clients. The applicant acted

as a trustee for this firm in that he accepted that the invested funds

were paid to a bank account opened in his name; he then carried out

the transfers solicited by the firm.

The firm was declared bankrupt in 1978 and subsequently

criminal proceedings for fraud were instituted against its manager on

the ground that certain of the funds in question had not been used to

finance loans, but instead for paying back old debts. Upon a criminal

information laid by one of the clients the criminal investigation was

extended to the applicant who was suspected of having known of these

improper transactions and having aided and abetted the crime of fraud

committed by the manager of the above firm. In this connection he was

interrogated as an accused (Beschuldigter) by an investigating judge

of the Regional Criminal Court (Landesgericht für Strafsachen) of

Vienna on 16 October 1979, who on the same day instituted preliminary

investigations against the applicant. On this occasion the applicant

denied having known anything of the improper transactions of his

client.

The applicant then did not hear anything of the case for

several years. He assumed that on the basis of his statements made at

the above interrogation by the investigating judge the charges against

him had been dropped. In fact, however, an expert had been appointed

in November 1979 to report on the various financial transactions

involved in this and related cases. The court and prosecutor made

requests for the opinion to be expedited several times over the years,

the time limit being extended from September 1982 to November 1982 and

then to October 1983, April 1984, May 1984, November 1984, January

1985, April 1985 and August 1985. The opinion was finally submitted

in January 1986, and on 3 March 1986 the judge concluded the

preliminary examination. In July 1986 the applicant was again

questioned, when he confirmed his earlier statements.

On 26 January 1987 an indictment was preferred by the Vienna

public prosecutor against both the manager of the above firm

(concerning numerous charges of fraud) and the applicant (concerning

charges of aiding and abetting fraud). It was served on the applicant

in February 1987.

The applicant raised an objection (Einspruch) to the

indictment in which he claimed that the charges against him were

unjustified because he had neither acted with intent to defraud, nor

with the purpose of drawing profit, and that he had not committed any

acts of deception; accordingly he claimed that the legal conditions of

the offence of fraud were not met in his case. However, the Vienna

Court of Appeal (Oberlandesgericht) rejected the objection on

25 February 1987, finding that the legal conditions of the offence had

been sufficiently spelt out in the indictment to justify a suspicion

against the applicant. It was for the trial court to judge whether

this suspicion was well-founded. The court accordingly admitted the

indictment also against the applicant.

The manager of the above firm was convicted on 18 August 1988.

The trial of the applicant's case, which was originally planned to be

held at the same time, was severed at the applicant's request due to

reasons of health.

On 16 June 1989 the prosecutor requested that the proceedings

against the applicant be suspended as, pursuant to an expert

opinion on his health, the applicant was too ill to be questioned and

his health was unlikely to improve. The proceedings were so

suspended, pursuant to Article 412 of the Code of Criminal Procedure

(Strafprozessordnung), on 29 June 1989.

COMPLAINTS

The applicant complains that Article 6 para. 1 of the

Convention has been violated in that an unreasonable criminal charge

was raised against him and in that this charge was not determined

within a reasonable time.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 April 1987 and registered

on 6 June 1987.

On 6 July 1989 the Commission decided to communicate the

complaint concerning the length of the proceedings to the respondent

Government, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure,

and to invite them to submit written observations on the admissibility

and merits of the application.

The observations of the Government were submitted on

16 November 1989 and the applicant's reply on 27 April 1990.

On 7 November 1990 the Commission decided that the case should

be referred to the Second Chamber.

THE LAW

1. The applicant complains that an unreasonable criminal charge

was raised against him, and that the charge was not determined within

a reasonable time, as required by Article 6 para. 1 (Art. 6-1) of the

Convention.

The first sentence of Article 6 para. 1 (Art. 6-1) provides

as follows:

"1. 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."

2. As to the complaint that an unreasonable criminal charge was

brought against the applicant, the Commission recalls that it is for

the domestic courts to assess evidence, although the way in which

evidence is taken may raise issues under Article 6 para. 1 (Art. 6-1)

of the Convention (cf. Eur. Court H.R., Barberà Messegué and

Jabardo judgment of 6 December 1988, Series A no. 146, p. 31 para.

68). The Commission notes that the Court of Appeal admitted the

indictment against the applicant, observing that it was for the trial

court to judge whether the suspicion against the applicant was

well-founded, and that the proceedings were ultimately discontinued

in view of the applicant's state of health. In these circumstances

the Commission finds no indication of unfairness in the proceedings

complained of.

It follows that this part of the application is manifestly

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

the Convention.

3. The applicant also complains of the length of the proceedings,

again alleging a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

The Commission notes that the proceedings against the

applicant began on 16 October 1979, when preliminary investigations

were instituted against the applicant. This is not contested by the

respondent Government. On 16 June 1989 the prosecutor requested that

the proceedings be suspended and a decision was taken pursuant to

Article 412 of the Code of Criminal Procedure (Strafprozessordnung) on

29 June 1989.

The Government accept that over 7 years elapsed between the

time when the preliminary investigations were instituted against the

applicant and the date of the indictment against him. They submit,

however, that the case was extremely complicated, involving huge sums

of money, foreign investments and a case-file of some 10,000 pages by

1986. They also underline that the court and the public prosecutor

frequently attempted to speed up production of the expert's opinion.

The Commission considers that the complaint concerning the

length of the proceedings raises difficult questions of fact and law

which are of such complexity that their determination should depend on

an examination of the merits. This part of 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 INADMISSIBLE the complaint that the criminal charge

was unreasonable, and

DECLARES ADMISSIBLE, without prejudging the merits of the

case, the complaint as to the length of the proceedings.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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MATHES v. AUSTRIA

MATHES v. AUSTRIA

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