Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15016/89

by H.M.

against Austria

The European Commission of Human Rights sitting in private

on 2 July 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

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 March 1989

by H.M. against Austria and registered on 23 March 1989 under

file No. 15016/89;

Having regard to the observations submitted by the respondent

Government on 16 October 1989 and the observations in reply submitted

by the applicant on 9 and 15 January 1990;

Having regard to the report provided for in Rule 40 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 is a

consultant and lives in Vienna. The facts of the case may be

summarised as follows.

On 2 May 1985 the applicant introduced Application No. 11688/85

with the Commission in which he complained under Article 6 para. 1 of

the Convention, inter alia, of the length of proceedings in which he

was involved. Criminal proceedings had been instituted against him

on 21 May 1980. On 30 May 1984 the Vienna Regional Court

(Landesgericht) had convicted the applicant of misappropriation of funds

and fraud and sentenced him to six years' imprisonment. The written

judgment was served on the applicant on 4 July 1986.

On 16 October 1986 the Commission declared Application

No. 11688/85 admissible insofar as it related to the complaint

concerning the length of the proceedings. In its Report of

10 March 1988 the Commission concluded unanimously that there had been

a violation of Article 6 para. 1 of the Convention in that the

applicant's case had not been heard within a reasonable time.

On 19 September 1989, at the 428th meeting of the Ministers'

Deputies, the Committee of Ministers found that there had been a

violation of Article 6 para. 1 in the case and recommended payment of

the sum of AS 275,000 by the Government to the applicant as just

satisfaction for material loss and non-pecuniary damage (Res. D.H.

(89)19).

The present application concerns the proceedings which resumed

before the Vienna Regional Court on 11 January 1988 following the

Supreme Court's decision of 30 January 1987 by which it had quashed

the sentence of the Regional Court of 30 May 1984. On 23 March 1988 the

Regional Court convicted the applicant of misappropriation of funds

(Untreue) and negligent insolvency (fahrlässige Krida) and sentenced

him to three years' imprisonment, two years of which were suspended

for three years.

The presiding judge received the transcript of the proceedings

of 16 February 1988 on 3 May 1988. The Regional Court's written

judgment was served on the applicant's lawyer on 11 April 1989. The

decision ran to 68 pages and referred, inter alia, to the testimony of

approximately 100 witnesses.

On 8 May 1989 the applicant filed a plea of nullity and an

appeal (Berufung). At present the proceedings are apparently again

pending before the Supreme Court.

On 1 January 1990 an amendment to the Courts Act

(Gerichtsorganisationsgesetz) entered into force, providing for

application to a superior court for the imposition of a time-limit

where an inferior court fails to comply with, for example, time-limits

for the preparation of a written judgment (Fristsetzungsantrag, Section

91 of the Courts Act).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 March 1989 and registered

on 23 March 1989.

On 6 July 1989 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 16

October 1989 and the applicant's reply was submitted on 9 and 15

January 1990.

COMPLAINTS

The applicant alleges a violation of Article 6 para. 1 of the

Convention by reason of the delay in the preparation of the written

judgment of 23 March 1988, which was served on 11 April 1989.

THE LAW

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

Convention that he received the written judgment of his conviction of

23 March 1988 only on 11 April 1989. Article 6 para. 1 (Art. 6-1) of

the Convention provides, so 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 application

relates solely to the time taken for preparation of the written

judgment of 1988. They regard this period as running from 3 May 1988,

that is, the date when the judge held the complete transcript of the

trial, to 11 April 1990, that is, the date of receipt by the

applicant's lawyer of the written judgment. The Government

accordingly regard the time taken for preparation of the judgment as

11 months and 8 days.

The Government note the Commission's finding, in its Report

of 10 March 1988 in the applicant's previous application concerning

the criminal proceedings brought against him, that the proceedings

involved complex problems, but that such complexity did not justify a

period of 25 months for preparation of the written judgment. The

Government consider that the relevant period in the present case was

some 11 months.

The Government underline that Austrian criminal procedural

law required a new judge to come afresh to the applicant's second

first instance trial, and they note that the new judge also had a

heavy burden of work, to which no new case was added from 18 October

1988 to 31 December 1988.

The applicant points out that it appears from the Government's

observations that the judge, who reported on 26 August 1988 that he

expected to produce a judgment of 200 pages by the end of September,

had not even begun work on the case by August. The applicant also

points out that the judgment eventually comprised only 68 pages, 15 of

which were formal or technical.

The Commission considers that it is required to have regard to

the length of the whole 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 recalls that on

10 March 1988 it found a violation of Article 6 para. 1 (Art. 6-1) of the

Convention in respect of the length of proceedings to that date. The

present application can only relate to the length of proceedings

thereafter, although the state of proceedings at that time must be

taken into account.

The Commission finds that the applicant's complaint about the

length of the criminal proceedings at issue raises questions of

fact and law which are of such complexity that their determination

requires 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

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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M. v. AUSTRIA

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