Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12896/87

by Franz SCHADEN

against Austria

The European Commission of Human Rights sitting in private

on 9 May 1989, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

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 20 January 1987

by Franz Schaden against Austria and registered on 28 April 1987

under file No. 12896/87;

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 facts of the case, as they have been submitted by the

parties, may be summarised as follows.

The applicant, born in 1949, is a German national and resident

at Retz, Austria. He is an oenologist and businessman by profession.

When lodging the application he was detained at the Korneuburg Prison.

Before the Commission he is represented by Mr. K. Bernhauser, a lawyer

practising in Vienna.

The applicant was manager of two limited liability companies

trading in wine and spirits. One of them was owned by the applicant's

father, the other was jointly owned by the applicant and his father.

In June 1977 the Korneuburg Regional Court (Kreisgericht) instituted

preliminary investigations (Voruntersuchung) against the applicant's

father on the suspicion of fraud and bankruptcy offences. In July and

August 1977 bankruptcy proceedings were opened against the two

companies. On 12 September 1977 the Korneuburg Regional Court joined

criminal proceedings against the applicant, his father and a further

person on the suspicion of conversion of goods in official custody

(Verstrickungsbruch), which had been conducted at the Retz District

Court (Bezirksgericht), with the investigation proceedings against the

applicant's father concerning fraud and bankruptcy offences.

On 22 September 1977 the Retz City Police Office (Gendarmerie-

postenkommando) requested the Korneuburg Regional Court to institute

criminal proceedings against the applicant on the suspicion of having

committed fraud as manager of the two above companies. The Regional

Court joined the two investigation proceedings against the applicant.

In October 1977 a company joined the proceedings as a private

party (Privatbeteiligter).

On 20 December 1977, following investigations by the Lower

Austria Police Department (Landesgendarmeriekommando), the Korneuburg

Regional Court summoned the applicant, who could then not be examined

on account of illness. He was heard on 5 January 1978.

On 12 January 1978 the applicant's defence counsel presented

himself to the Regional Court.

On 26 January 1978 the Korneuburg Regional Court, having

received information about various civil enforcement proceedings

against the applicant and the other suspects and having heard the two

witnesses C and B, submitted the files to the Korneuburg Public

Prosecutor's Office (Staatsanwaltschaft) for further action.

On 27 January 1978 the Prosecutor's Office returned the

files. It requested the Korneuburg Regional Court to investigate

further, in particular against the applicant, to conduct appropriate

inquiries as to the bankruptcy offences and to order an expert opinion

as to the applicant's and his father's financial situation at the

beginning of their insolvency.

On 3 February 1978 the Korneuburg Regional Court questioned

the applicant and other suspects a second time. On 17 February 1978

it submitted the files to the Lower Austria Police Department

requesting them to supplement their inquiries.

On 28 August 1978 the Korneuburg Regional Court received the

further findings of the Police Department. On 29 August 1978 the

Court appointed the commercial expert P as auditor and instructed him

to prepare an opinion on the questions raised by the Public

Prosecutor's Office, namely the financial situation of the applicant

and his father at the beginning of their insolvency and knowledge

thereof. The Court fixed a time-limit of six weeks.

On 30 October 1978 the expert P informed the Korneuburg

Regional Court that the time-limit could not be kept for an opinion

such as in the present case. His opinion could be expected in

December 1978; otherwise he would submit a further intermediate

report. On 19 December 1978 P informed the Court that the applicant

had not appeared at a final discussion on 14 December 1987 on account

of a death. His opinion would be delivered the second week of January

1979. On 17 January 1979 the Korneuburg Regional Court, having

received the expert opinion comprising 89 pages and annexes, closed

the preliminary investigations and submitted the files to the

Korneuburg Public Prosecutor's Office for further action. On

29 January 1979 the files were returned to the Regional Court;

the Prosecutor's Office requested completion of the investigations.

The Regional Court sent the files to the Lower Austria Police

Department on 30 January 1978 and requested that the further inquiries

be completed with priority.

On 21 February 1980 the Korneuburg Regional Court received the

Police Department's report. It sent the files to the Korneuburg

Public Prosecutor's Office for further action.

On 28 February 1980 the Korneuburg Public Prosecutor's Office

preferred the indictment (Anklageerhebung) against the applicant on

charges of fraud, conversion of goods in official custody, retention

of social security contributions (§114 of the Social Security Act -

ASVG) and fraudulent bankruptcy (fahrlässige Krida). The criminal

proceedings against the other suspects were discontinued.

Furthermore, the Prosecutor's Office requested supplementary inquiries

to be conducted in the intermediate proceedings (Zwischenverfahren)

before the opening of the main proceedings.

On 13 March 1980 the Korneuburg Regional Court sent part of

the files to the Linz District Court for examination of the witness M.

On 20 March the Regional Court heard the two further witnesses N and F

as requested by the Public Prosecutor's Office. One of the witnesses

was heard again on 27 March 1980. The Linz District Court heard the

witness M on 16 April 1980, and submitted its report and the files to

the Regional Court on 17 April 1980.

On 6 May 1980 the Presiding Judge at the Korneuburg Regional

Court sent the files to the Public Prosecutor's Office for action on

new requests to prosecute the applicant. On 8 May 1980 the files were

returned. The Prosecutor's Office reserved the right to extend the

indictment to charges based on the statements of the witnesses M and

F. These witnesses should be summoned for the trial.

On 2 September 1980 the Korneuburg Regional Court fixed

13 November 1980 as the date for the trial. On 30 September 1980 the

files were sent to the Lower Austria Police Department to establish

the whereabouts of a witness H. The Police Department's report was

received on 15 October 1980.

Furthermore, in October 1980, three persons joined the

criminal proceedings as private parties.

On 13 November 1980 the Regional Court opened the trial, which

was postponed to hear the expert on his opinion. On 14 November 1980

the Public Prosecutor's Office ordered supplementary inquiries as

regards the testimony of a particular witness. The results were

received by the Regional Court on 24 November 1980.

On 29 January 1981 the Korneuburg Regional Court resumed the trial.

It convicted the applicant of fraud on six counts, fraudulent bankruptcy,

conversion of goods in official custody and retention of social security

contributions, and sentenced him to two years' imprisonment. The applicant

was acquitted of the charge of fraud on seven further counts. The Court

having heard several witnesses and the expert P found that in 1974 to 1975

the applicant had negligently caused the insolvency of the two above-

mentioned companies. It considered that he had not requested the opening

of bankruptcy proceedings in the beginning of 1976 when he already knew

about the insolvency of both companies. Furthermore he had entered into

legal transactions in 1976 pretending still to be a solvent businessman.

The judgment, comprising 6 pages, was served upon the applicant on 1 June

1981. On 16 June 1981 the applicant, having previously announced his

plea of nullity (Nichtigkeitsbeschwerde) and appeal (Berufung)

against sentence, filed the reasons for these remedies.

On 23 July 1981 the Austrian Supreme Court (Oberster

Gerichtshof), upon the applicant's plea of nullity, quashed the

judgment with regard to the conviction and sentence. The case was to

that extent sent back for a new trial. The Supreme Court upheld the

remainder of the judgment of 29 January 1981. It found that the Regional

Court had insufficiently taken evidence as regards the question

whether the applicant was at the relevant time still convinced that he

could restore the companies' solvency.

On 12 August 1981 the files were returned to the Korneuburg

Regional Court. On 17 August 1981 Judge F, competent for the second

trial under the Court's rules on assignment of cases, informed the

President of the Korneubeurg Regional Court that he had acted as

Investigating Judge in the first set of proceedings. The case was

assigned to Judge R.

On 26 August 1981 the Korneuburg Regional Court sent the files

to its Investigating Judge in order to question the applicant as

regards the mental elements of the offences concerned, and to order

subsequently a supplementary expert opinion. The applicant did not

comply with a first summons to be heard on 24 September 1981. On 9

October 1981 he requested a time-limit of six to eight weeks to submit

documents explaining his business concept for the companies. On

27 October 1981 the applicant was summoned for 16 November 1988. On

that date he was questioned, he filed some documents and stated that

he intended to submit further documents before 15 December 1981.

On 27 November 1981 the Korneuburg Public Prosecutor's Office

informed the Regional Court that the indictment might be extended to

further offences under S. 114 of the Social Security Act.

On 30 November 1981 the applicant was summoned for 15 December

1981. One day earlier his defence counsel informed the Court that the

applicant was travelling abroad, and they agreed upon 21 December 1981

as the date for the applicant's questioning. The applicant did not

appear on account of illness. On 18 January 1982 the Retz District

Court, upon a request for mutual assistance, questioned the applicant.

The report and files were submitted on 21 January 1982. On

12 February 1981 the Korneuburg Regional Court heard the witness B.

On 18 February 1982 the Korneuburg Regional Court ordered the

expert P to supplement his written opinion. The expert informed the

Court that he had first to comply with urgent orders from other

courts. In an intermediate report dated 3 August 1982 the expert

confirmed that he could finish his supplementary opinion only at the

end of September 1982 after a final discussion with the applicant.

The opinion arrived at the Regional Court on 6 October 1982.

On 15 October 1982 the files were again sent to the

Investigating Judge in order to complete the investigations according

to the Court's decision of 26 August 1981, in particular to hear

further witnesses.

On 29 October 1982 six witnesses were heard, two further

witnesses were summoned for 8 November 1982. One of the witnesses

did not appear on account of illness, he was heard on 12 January

1983. In the meantime, on 7 December 1982, the Linz District Court,

upon request for mutual assistance, heard another witness.

On 21 January 1983 the files were again sent to the Korneuburg

Regional Court and, three days later, transferred to Judge F,

competent for the case under the Court's new rules. On 24 January 1983

F informed the President of the Korneuburg Regional Court that,

according to the decision of 17 August 1981, he could not deal with

the case. On 3 February 1983 the case was again assigned to Judge R.

From 16 February until 7 March 1983 the files were sent to the

Laa District Court upon the request of the applicant's counsel.

On 21 June 1983 the files were again sent to the Investigating

Judge. The Korneuburg Regional Court, referring to the earlier

decisions of 26 August 1981 and 15 October 1982, requested to take

further evidence, in particular to hear witnesses upon particular

aspects of the charges.

On 26 July 1983 the Investigating Judge at the Korneuburg

District Court sent rogatory letters to the Bad Kreuznach District

Court (Amtsgericht), in the Federal Republic of Germany, asking to

hear as witness a representative of a wine firm at Bingen who was

informed about a particular business transaction.

On 23 October 1983 the Bad Kreuznach District Court informed

the Korneuburg Regional Court that the rogatory letters could not be

complied with on the ground that Ma, the responsible buying agent at

that time, had moved to Switzerland.

On 9 November 1983 rogatory letters asking to hear two other

employees at Bingen were sent to the Bingen District Court, which

forwarded them to the competent Bad Kreuznach District Court on 6

December 1983. On 6 February 1984 the Bad Kreuznach District Court

returned the rogatory letters. It annexed a letter of the Bingen wine

firm explaining that the two employees concerned had not been

responsible for the business transaction in question and stating the

address of Ma, the previous buying agent.

On 14 February 1984 the Swiss court competent for Wintherthur

received rogatory letters and was asked to hear Ma as witness. The

Winterthur District Attorney's Office (Bezirksanwaltschaft), having

heard Ma, submitted its report on 22 March 1984.

On 27 March 1984 the Korneuburg Regional Court sent rogatory

letters to the Bad Kreuznach District Court and asked to hear a

witness who had been mentioned by the witness Ma. The rogatory

proceedings were closed on 27 June 1984.

On 26 July 1984 the applicant, who had not complied with a

summons two weeks earlier, was heard by the Retz District Court, in

proceedings of mutual assistance, in respect of the particular

business transaction.

On 30 July 1984 the Korneuburg Regional Court sent rogatory

letters to the Bad Kreuznach District Court and requested the hearing

of a further witness who had been named by the applicant. On

10 September 1984 the Bad Kreuznach District Court informed the

Korneuburg Regional Court that it had forwarded the rogatory letters

to the competent Rüdesheim District Court. The Korneuburg Regional

Court heard a further witness in September 1984. On 7 November 1984

the Rüdesheim District Court submitted its report.

On 10 June 1985 the Presiding Judge of the Korneuburg Regional

Court fixed 9 and 10 July 1983 as dates for the trial.

On 31 July 1985 the applicant was taken into detention on

remand.

On 9 and 10 July the Korneuberg Regional Court conducted the

second trial which was continued on 13 September 1985. It convicted

the applicant of fraud on five counts and bankruptcy offences by which

he had caused a total damage of more than 15 million AS. He was

sentenced to one and a half years' imprisonment. The period of his

detention on remand was to be deducted from his sentence. He was

acquitted of the charge of fraud on one count.

In its judgment, the Court found in particular that, having

regard to the amount of his debts, the lack of liquid funds and the

failure of an envisaged important business transaction, the applicant

should have known by the end of 1975 that he could not restore the

solvency of the two companies. He nevertheless continued his

transactions. He raised further loans without having any concept for

his business, broke accounting rules and interfered with executions.

The Court proceeded from the evidence obtained from the files of the

bankruptcy proceedings, the files of numerous executions, the

testimony of witnesses and the opinion of the expert P.

The written version of the judgment of 48 pages was completed

on 31 January 1986 and served upon the applicant's defence counsel on

19 February 1986.

On 6 March 1986 the applicant filed the reasons for a plea of

nullity and an appeal against the judgment of 13 September 1986. He

submitted inter alia that the Regional Court had failed to consider as

mitigating circumstances the lapse of time since he committed the

offences in question.

On 9 September 1986 the Supreme Court dismissed the

applicant's plea of nullity and appeal.

The applicant started to serve his sentence on 12 September

1986. The Supreme Court's written decision was served upon him on

7 November 1986.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention of the length of the criminal proceedings against him. He

considers in particular that the second trial before the Korneuburg

Regional Court could have taken place earlier.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 January 1987 and

registered on 28 April 1987.

On 5 May 1988 the Commission decided that, in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure, notice should be given

to the respondent Government of the application and that they be

invited to submit written observations on the admissibility and merits

of the application before 22 July 1988.

The Government's observations were submitted on 25 July 1988.

The applicant's observations in reply were submitted on 20 October

1988.THE LAW

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

Convention that the criminal proceedings against him were not

terminated within a reasonable time.

Article 6 para. 1 (Art. 6-1), first sentence, states:

"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."

The respondent Govenment contend that criminal proceedings

concerning bankruptcy and related offences such as in the present case

are of a complex nature. Evidence had to be taken from an expert

opinion and witnesses had to be heard in rogatory proceedings.

Furthermore, the Government submit the applicant did not insist upon

fixing the second trial at an earlier date, and repeatedly delayed

the proceedings in that he did not comply with summonses. The length

of the proceedings could not be attributed to the Austrian

authorities. The Government, referring to the different stages of the

proceedings, submit that no unreasonable delays occurred and that the

course of action taken by the Korneuburg Regional Court did not cause

any unreasonable delays.

The Commission finds that the applicant's complaint under

Article 6 para. 1 (Art. 6-1) of the Convention about the length of the criminal

proceedings against him, which lasted more than nine years, raises

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 Acting President of the Commission

(H. C. KRÜGER) (J. A. FROWEIN)

Menu

SCHADEN v. AUSTRIA

SCHADEN v. AUSTRIA

LEXI