Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13373/87

by G.H.

against Austria

The European Commission of Human Rights sitting in private

on 7 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 15 June 1987

by G.H. against Austria and registered on 12 November 1987

under file No. 13373/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to :

- the Commission's decision of 6 July 1989 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

25 October 1989 and the observations in reply submitted

by the applicant on 18 December 1989;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1952 and living

in Hagenberg. She is represented by MM. Christian Slana and Günter

Tews, lawyers in Linz.

The facts as submitted may be summarised as follows:

The applicant was the director of a kindergarten owned by a

welfare organisation (Österreichischer Sozialhilfe- und Wohlfahrtsverband).

On 10 November 1983 her employer laid criminal charges against her

alleging that she had committed embezzlement. The complaint was filed

with the Linz Federal Police Directorate (Bundespolizeidirektion) on

on 15 November 1983. The police started investigations and on

2 October 1984 the Public Prosecutor in Linz filed an indictment

against the applicant accusing her of having embezzled approximately

AS 225,000 since 1978. According to the indictment the applicant had

on 17 November and 16 December 1983 admitted before the police to

having used between 1978 and 1983, for private daily expenses, money

paid to her by parents as contributions to the running of the

kindergarten. She had alleged that initially she only intended to

borrow the money but later she lost control. Also she had repaid a sum

of AS 41,000 as compensation at the moment when her irregularities

were discovered.

The confession had however been withdrawn before the

investigating judge on 24 January 1984 apparently after consultation

with her defence counsel. She then had alleged to have used all

money for purposes of the kindergarten. The indictment concluded that

this version was not trustworthy. It followed from the fact that the

applicant even accepted to pay compensation that her confession

corresponded to what had actually happened.

In a memorial of 14 November 1984 the applicant's defence

counsel contested the charges and requested that an expert opinion

from an accountant be obtained in order to prove that the applicant

spent the funds entrusted to her for purposes of the kindergarten only.

On 21 November 1984, the Regional Court (Landesgericht) in

Linz ordered that an expert opinion, as requested by the defence

counsel and also by the public prosecutor, be obtained. A hearing

that had been fixed for 23 November was consequently cancelled and

the file sent back to the investigating judge. On 23 November 1984

Prof. H. in Linz was charged to establish the expert opinion.

In September 1986 the public prosecutor requested the court to

urge the expert to submit his expert opinion. It follows from a file

note made on 4 September 1986 that the expert stated he would submit

his expert opinion at the beginning of October. According to the

expert he had tried to contact the applicant but she had been on

holiday the whole summer.

The expert opinion was submitted in December 1986. On

25 February 1987 the Regional Court decided to hold an oral hearing on

11 May 1987. At the oral hearing on 11 May 1987 the applicant was heard

and it was decided to return the file to the investigating judge for

further investigation and for obtaining supplementary explanations

from the expert. Witnesses were heard on 1 July 1987, 22 October 1987

and 4 November 1987. On the latter date the expert was requested to

submit a supplementary report. On 13 June 1988 the Regional Court

decided to replace the expert Prof. H. by another expert, Dr. M. On

13 July 1988 Prof. H. submitted a supplementary report. The decision

of 13 June 1988 was therefore cancelled. On 28 July 1988 the public

prosecutor withdrew the indictment and on the following day the

Regional Court discontinued the proceedings. On 17 August 1988 the

private party to the proceedings stated that the accusations against

the applicant were maintained. On 24 October 1988 this declaration

was withdrawn, and on 25 October 1988 the proceedings were definitely

discontinued.

COMPLAINTS

The applicant complains of the length of the criminal

proceedings and invokes Article 6 para. 1 of the Convention.

She denies having been absent in summer 1986 when the expert

allegedly tried to contact her. She considers that the indictment was

filed too hastily although no witnesses had been heard previously as

requested by defence counsel and furthermore no accounts and documents

were available as evidence for or against her.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 June 1987 and registered

on 12 November 1987.

On 6 July 1989 the Commission decided to invite the respondent

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

to submit written observations on admissibility and merits before

27 October 1989. The Government's observations were submitted on

25 October 1989 and the applicant's reply on 18 December 1989.

THE LAW

The applicant complains of the length of the criminal

proceedings against her.

She relies on Article 6 para. 1 (Art. 6-1) of the Convention, which

provides:

"In the determination ... of any criminal charge against him,

everyone is entitled to a fair and public hearing within a

reasonable time ...".

The Commission notes that the proceedings in question began on

15 November 1983 and ended on 25 October 1988. The proceedings

therefore had lasted nearly five years when the Regional Court

definitely discontinued them.

The Government have first submitted that the applicant had not

exhausted the domestic remedies by not asking for the expert to be

replaced by another expert. The Commission considers, however, that

she could not have been required to do this. In fact, the expert was

appointed in a criminal case by the court, and it was the court's task

to see to it that the expert acted with sufficient speed.

The Government have also informed the Commission that the

criminal proceedings against the applicant were discontinued on

25 October 1988. However, there is no indication that the delay in

the proceedings was the reason, or one of the reasons, for taking this

decision. Consequently, the Commission considers that the applicant

can still claim to be a victim, in the sense of Article 25 (Art. 25),

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

The Commission further, after a preliminary examination of the

parties' submissions, does not find that the applicant's complaint

under Article 6 para. 1 (Art. 6-1) can be rejected as being manifestly

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

Convention. It considers that this issue can only be determined after

an examination on the merits.

No other grounds of inadmissibility have 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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G.H. v. AUSTRIA

G.H. v. AUSTRIA

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