Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12445/86

by G.

against Austria

The European Commission of Human Rights sitting in private

on 10 July 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

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 7 July 1986

by G. against Austria and registered on 10 October 1986 under

file No. 12445/86;

Having regard to:

- the observations submitted by the respondent Government on

1 September 1988 and the observations in reply submitted

by the applicant on 18 October 1988;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as submitted by the parties may be

summarised as follows:

The applicant, an Austrian citizen born in 1937, is a

businessman resident in Vienna. Before the Commission he is

represented by Dr. K. Bernhauser, a lawyer practising in Vienna.

On 22 April 1981 bankruptcy proceedings were instituted in

respect of the applicant's firm. On 13 May 1981 the bankruptcy court

concerned filed a report (Anzeige) against the applicant on the

grounds of a suspicion of fraud and negligent bankruptcy.

On 21 May 1981 the applicant was interrogated as a suspect by

the Horn Police Constabulary (Gendarmeriepostenkommando).

On 30 May 1981 the Horn Police Constabulary notified the Horn

District Court (Bezirksgericht) that the applicant was suspected of

having embezzled.

On 17 June 1981 the Krems Public Prosecutor's Office applied

for the institution of preliminary investigations against the

applicant who was suspected of having committed, inter alia, the

offences of serious fraud and embezzlement. The file was then

transmitted to the investigating judge at the Krems Regional Court

(Kreisgericht).

On 19 October 1981 the Regional Police Authority (Landesgen-

darmeriekommando) of Lower Austria at Krems introduced before the

Krems Public Prosecutor's Office charges (Strafanzeige) against the

applicant relating to various offences in connection with his

insolvency in 1978 and his bankruptcy in 1981. The Regional Police

Authority also submitted an investigation report counting 656 pages.

On 30 November 1981 the Krems Public Prosecutor's Office

indicted the applicant before the Krems Regional Court on the grounds

of negligent and fraudulent bankruptcy offences, of embezzlement, and

of serious professional fraud. The bill of indictment which numbered

altogether 31 pages and listed 22 counts divided the offences into

four groups.

Thus, the applicant was accused, first, of having negligently

caused, as manager of two of his companies as well as a private

person, damages to a number of creditors. In particular, he had

between 1972 and 1980 recklessly and disproportionately brought about

his insolvency and from February 1980 until 21 May 1981, in full

knowledge of his insolvency and to the detriment of his creditors,

entered further debts or paid old debts and not requested in due

course the opening of bankruptcy proceedings.

Second, the applicant was accused of having sold, or kept

secret, part of his fortune and thus having diminished the payment of

his creditors whereby he had caused damages of over 100,000 AS. Thus,

he had sold real estate of his, on which he had a petrol station and

a coffee bar, to his wife after certain bankruptcy proceedings had

been instituted, though he had paid only part of the purchase price by

transferring mortgages on the property. Moreover, shortly before the

institution of the bankruptcy proceedings he had sold a car to a

certain Allro car company which, while belonging to the applicant,

was actually run by nominees (Strohmänner). Finally, during the

bankruptcy proceedings he had kept secret in respect of his personal

fortune the fact that he was the owner of the Allro company.

Third, the applicant was accused as responsible manager of one

of his companies of having transferred property, namely five cars and

one lorry which had been entrusted to him, to third persons and

of having thereby unlawfully enriched himself. Fourth, the applicant

had by unlawful and fraudulent means enriched himself in respect of a

further ten cars.

The bill of indictment was received by the investigating judge

at the Krems Regional Court on 30 December 1981 and obtained legal

force on 29 January 1982.

On 2 November 1983 a hearing was fixed which took place on

23 and 24 November 1983 before the Krems Regional Court. The

applicant mainly pleaded not guilty or did not comment. The Court

also heard altogether 26 witnesses. Upon application of the

applicant's lawyer the Court decided to order the preparation of an

expert opinion as to the actual moment when the applicant's companies

had become insolvent. The Court dismissed the further request of the

applicant's lawyer also to order the preparation of an expert opinion

by a specialist in the assessment of real estate; it considered that

the respective questions were either already answered in the file or

constituted legal questions which the Court had to resolve.

On 16 December 1983 and 27 January 1984, the Krems Regional

Court instructed Messrs. W. and H. to prepare the expert opinion.

Messrs. W. and H., however, were not available.

On 1 February 1984 the Regional Court instructed the expert

accountant, Mr. N, to prepare an opinion on the reasons and the

actual moment of the insolvency of the applicant's company as well as

on the date when this insolvency had become apparent.

This opinion was submitted on 24 October 1984. It contained

altogether 82 pages including various tables depicting, inter alia,

balance sheets, accounts and the applicant's fortune. When preparing

the opinion Mr. N. constantly kept the Regional Court informed of his

progress.

On 12 November 1984 the Krems Regional Court fixed a further

hearing for 29 November 1984. This was cancelled as the applicant

was bed-ridden. Instructed by the Regional Court, Dr. G. submitted

on 7 December 1984 a medical opinion according to which the

applicant was unable to stand trial (verhandlungsunfähig) until

15 December 1984.

On 19 December 1984 the Public Prosecutor's Office requested

the Court again to fix a hearing.

On 20 December 1984 the Krems Regional Court decided to

suspend the proceedings in view of a new medical expert opinion

according to which the applicant suffered from psychovegetative heart

and circulatory disorders.

On 31 January 1985 the Krems Regional Court ordered a

further medical opinion from Dr. G. as to the applicant's ability to

stand trial. This was submitted on 13 February 1985.

On 11 March 1985, the Regional Court determined the fees for

the expert opinion of Mr. N. Against this decision the Krems Public

Prosecutor's Office filed an appeal whereupon on 9 April 1985 the

case-file was transmitted, until 23 May 1985, to the Vienna Court of

Appeal (Oberlandesgericht).

Upon the Regional Court's instruction of 9 December 1985,

Dr. G. submitted on 20 December 1985 a further medical opinion on the

applicant's ability to stand trial.

On 27 December 1985 the Regional Court fixed a hearing for

30 January 1986. However, on 8 January 1986 the expert Mr. N.

informed the Court that he could not attend on that date. A hearing

was then fixed for 13 March 1986.

On 11 March 1986 the Court was informed of the unsuccessful

summons of the witness K. As the Public Prosecutor's Office and the

applicant's lawyer declared that the presence of the witness was

essential, the hearing was postponed until 12 June 1986.

On 2 June 1986 the applicant transmitted to the Regional Court

a written submission in which he pleaded guilty in respect of most

counts except the second group of offences concerning the diminution

of payment of his creditors. The applicant pointed out that it was

therefore now unnecessary to hear further witnesses. For this reason,

and also to save costs, he requested the Court not to hear the expert

Mr. N.

The hearing took place on 12 June 1986. The applicant now

pleaded guilty in respect of most offences. The Court still heard one

witness. The Court then pronounced its judgment. It convicted the

applicant of negligent and fraudulent bankruptcy offences, of

embezzlement, and of serious professional fraud. The applicant was

sentenced to two years' imprisonment. At the hearing the applicant

filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal

(Berufung) against the judgment.

The Regional Court's judgment was served on the applicant on

2 March 1987. Therein, the Regional Court found the applicant guilty

on most counts stated in the bill of indictment of 30 November 1981.

It acquitted the applicant on three counts of the second group of

offences concerning the diminution of payment of his creditors. The

Court, observing that the applicant had been convicted to the extent

that he had pleaded guilty, considered this as a mitigating

circumstance. As aggravating circumstances it considered the

seriousness of the offences and the fact that a number of them had

coincided.

On 1 September 1987 the Supreme Court (Oberster Gerichtshof)

partly upheld the applicant's plea of nullity. It set aside the

finding of guilt on three counts and in this respect referred the case

back to the Krems Regional Court for a new decision. In respect of

the remaining offences the Supreme Court itself adjudged the case and

sentenced the applicant to 20 months' imprisonment.

Meanwhile the applicant filed a petition for pardon. The

case-file was then transmitted to the Federal Ministry of Justice

where it remained from 13 November 1987 until 28 January 1988. The

petition for pardon was eventually dismissed.

To the extent that the Supreme Court referred the case back to

the Krems Regional Court, the Krems Public Prosecutor's Office

withdrew the remaining charges on 12 February 1988 on the ground that,

even if the applicant was convicted in this respect, no supplementary

sentence was to be expected. On the basis thereof the Krems Regional

Court terminated the proceedings on 17 February 1988.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention of the length of the proceedings. While he was indicted on

30 November 1981 of offences which reached back to 1972, the first

hearing took place only on 23 and 24 November 1983 and the second

hearing only on 12 June 1986.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 July 1986 and registered

on 10 October 1986.

On 6 October 1987 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

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

On 15 April 1988 the Commission decided, upon the request of

the respondent Government, to extend the time-limit for their written

observations until 1 September 1988 in view of the pending proceedings

concerning the applicant's petition for pardon.

The respondent Government's observations were submitted on

1 September 1988 and the reply thereto by the applicant on

18 October 1988.

THE LAW

The applicant complains of the length of the criminal

proceedings against him. He relies on Article 6 para. 1 (Art. 6-1) of

the Convention which provides, insofar as it is relevant:

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

everyone is entitled to a ... hearing within a reasonable

time...".

The Government submit that the proceedings were unusually

complex. For instance, offences had to be investigated which were

committed between 1972 and 1981. Moreover, the applicant himself

contributed to the length of the proceedings in that he first denied

the charges and gave misleading explanations. As regards the conduct

of the authorities, the Government have submitted a time-chart on the

proceedings (included in THE FACTS below). They contend that the

preliminary investigations instituted against the applicant were

completed very speedily, which in turn however led to a more extended

trial. Subsequently, the Krems Regional Court had to prepare the

hearing scheduled for 2 November 1983 with particular care. For

instance, a total of 29 witnesses had to be summoned.

The Commission considers that the applicant's complaints under

Article 6 para. 1 (Art. 6-1) of the Convention raise complex issues of

fact and law which can only be resolved by an examination of the

merits. The application cannot, therefore, be declared manifestly

ill-founded. No other grounds for 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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