Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12855/87

by H.

against Austria

The European Commission of Human Rights sitting in private

on 13 October 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 19 March 1987

by H. against Austria and registered on 10 April 1987 under file No.

12855/87;

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 submitted by the applicant may be summarised as

follows:

The applicant, an Austrian citizen born in 1909, is a

pensioner. Her current place of residence is unknown to the Austrian

authorities. Before the Commission the applicant is represented by

Dr. R. Stöhr, a lawyer practising in Vienna.

I

On 19 March 1981 criminal investigations (Voruntersuchung)

were instituted by the investigating judge at the Vienna Regional

Court (Landesgericht) against the applicant who was suspected of

receiving stolen goods (Hehlerei) according to S. 164 paras. 1 (2)

and (3) of the Austrian Penal Code (Strafgesetzbuch). The applicant

had allegedly withdrawn approximately 8 million AS from a bank account

in Zurich/Switzerland appertaining to her nephew, Mr. A.W., who had

acquired this amount by illegal means. A warrant of arrest was issued

against the applicant on the same day. When the warrant of arrest was

served on the applicant, she could not be found at her address in

Vienna.

The applicant's representative filed an appeal (Beschwerde)

against the warrant of arrest, which was dismissed by the Review

Chamber (Ratskammer) at the Vienna Regional Court on 15 June 1981.

The Chamber considered that the monies on A.W.'s bank account

originally stemmed from commission fees which were in fact bribes

(Schmiergelder). A.W. had received these monies as a result of

distributing orders (Auftragsvergabe) during the construction of the

Vienna General Hospital (Allgemeines Krankenhaus). In July and August

1980 the applicant had, on the basis of a power of attorney of A.W.,

brought about the sale of precious metals and securities in A.W.'s

deposit in the Zurich bank. The proceeds were placed in a bank

account in the same bank from which the applicant then withdrew 8

million AS. From another bank account she had withdrawn 9000.-DM.

The Review Chamber further considered that claims

(Forderungen) also fell under S. 164 since this provision did not

presuppose identity of object. Rather, it was the sum of the value of

the claims which was relevant.

The applicant's appeal against this decision was dismissed by

the Vienna Court of Appeal (Oberlandesgericht) on 17 August 1981.

The General Procurator's Office (Generalprokuratur) then filed

with the Supreme Court (Oberster Gerichtshof) a plea of nullity for

safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes).

On 7 June 1982 the Supreme Court partly granted the plea of nullity.

The Supreme Court observed in particular that the offence of

receiving stolen goods under S. 164 of the Penal Code covered not only

identical objects (Sachhehlerei) but also substitute objects

(Ersatzhehlerei). The applicant was suspected of having committed, in

Switzerland, the offence of receiving substitute stolen goods. As

this offence was not punishable under Swiss law, the applicant could

not be prosecuted therefor in Austria, and the impugned decisions

were unlawful in this respect.

Nevertheless, in the Supreme Court's view it could not be

excluded that the applicant had already in Austria initiated

(eingeleitet) the offence which she later carried out in Zurich, and

that she had aided A.W. when he committed the offence. The Supreme

Court concluded that the criminal investigations against the applicant

should be continued.

On 29 June 1982 the investigating judge at the Vienna Regional

Court revoked the warrant of arrest of 19 March 1981. At the same

time he decided to continue the criminal invgestigations against the

applicant on other grounds. In particular, the latter was suspected

of having withdrawn 9,000.-DM from A.W.'s bank account in Zurich, thus

having committed the offence of receiving stolen goods within the

meaning of S. 164 para. 1 (2) of the Penal Code. The applicant was

also suspected of having initiated in Austria the offence of receiving

stolen goods in Switzerland amounting to 8 million AS. Finally, she

was suspected of having aided A.W., in Austria, in committing various

offences.

The appeal of the applicant's lawyer against this decision was

dismissed on 20 August 1982 by the Review Chamber at the Vienna

Regional Court, which confirmed the new grounds of suspicion referred

to by the investigating judge. A further appeal was rejected by the

Vienna Court of Appeal on 28 September 1982 which considered that the

previous decision was final.

On 13 October 1982 the investigating judge decided to

terminate or provisionally suspend (einzustellen bzw. vorläufig

abzubrechen) the criminal investigations against the applicant

according to S. 412 of the Code of Criminal Procedure (Strafprozess-

ordnung) on the ground that the accused's place of residence was

unknown. The applicant's lawyer claims that this decision was only

served on him two years later, i.e. on 10 October 1984.

On 2 October 1983 the applicant's lawyer wrote to the Zurich

bank and requested copies of the applicant's instructions to that

bank. According to an article published in October 1983 in an Austrian

magazine which dealt with the criminal proceedings against the

applicant, a Public Prosecutor told the reporter that letters of banks

did not constitute evidence since banks had the duty to protect their

clients. The reporter was apparently also told that the proceedings

against the applicant were to be terminated.

The bank in Zurich supplied the requested information on

24 October 1983. The letter was signed by the bank employees A. and

Sch. According to the letter, the applicant submitted a power of

attorney, signed in Zurich on 25 April 1980, for a certain bank

deposit and a certain bank account. On the basis thereof, she

withdrew in Zurich in July and August 1980 the sums of 540,000.-,

415,000.- and 42,376.50, i.e. altogether 997,376.50 Sfr.

The applicant's lawyer wrote on 18 November 1983 to the Vienna

Regional Court and requested the investigating judge to terminate the

proceedings or, alternatively, to verify the bank documents of the

bank concerned, in particular by hearing the bank employees Sch. and

H. This request was dismissed by the investigating judge on 7 May 1984,

apparently on the grounds that the criminal proceedings against the

applicant had already been suspended under S. 412 of the Code of

Criminal Procedure.

In his appeal against this decision the applicant's lawyer

requested the serving of the decision terminating the investigations

against the applicant which he had never received. He further

requested that any decision taken under S. 412 should be revoked and,

instead, that the proceedings should be terminated according to S. 109

of the Code of Criminal Procedure. S. 109 envisages termination if

the prosecuting authority finds no further grounds for prosecution.

Subsidiarily the applicant's lawyer requested the hearing of the

signatories of the bank's letter of 24 October 1983, namely A. and

Sch.

II

On 26 September 1984 the investigating judge at the Vienna

Regional Court resumed the proceedings. In particular, on the same

day, the judge filed with the Zurich District Attorney's Office

(Bezirksanwaltschaft) a request under letters rogatory (Rechtshil-

feersuchen) to hear the bank employees Sch., H. and A.

On 10 October 1984 the Review Chamber at the Vienna Regional

Court rejected the appeal of the applicant's lawyer against the

decision of 7 May 1984. The Review Chamber stated that the

proceedings against the applicant had been terminated (suspended) on

13 October 1982 on the ground that her place of residence was unknown.

A copy of this decision had meanwhile been served on the applicant

(zwischenzeitig zugestellt). However, on 26 September 1984 the

proceedings against the applicant had again been resumed, as she was

seriouly suspected of having committed the offences concerned.

On 3 February 1986 a Zurich District Attorney interrogated the

bank employee Sch. in Zurich. According to the minutes, H. was then

away on holidays, and A. had only provided the second signature on the

letter of 24 October 1983. Sch. explained that he had never met the

applicant. On the basis of bank documents he could determine that on

25 April 1980 she had submitted a power of attorney for the deposit of

A.W. At the same time she requested the contents of the deposit to be

sold. She thereupon withdrew monies from a bank account as stated in

the letter of 24 October 1983. The bank employee confirmed that the

applicant had never ordered any transactions by telephone or in

writing. She had always done so personally at the main bank office in

Zurich.

On 30 December 1987 the Public Prosecutor's Office requested

the investigating judge to cancel the international warrant of arrest

issued against the applicant and to terminate in part the proceedings

instituted against her to the extent that she was suspected of having

withdrawn 9,000.- DM from A.W.'s bank account. The investigating

judge was also asked to file with the Zurich District Attorney's

Office a new request under letters rogatory in respect of the sum of

997,376.50 Sfr.

On 3 March 1988 the Zurich District Attorney's Office heard

the bank employee H. The latter confirmed that the bank's letter of

24 October 1983 had been correct. Apparently, money on A.W.'s bank

account was intended for a corporation (Aktiengesellschaft) in

Liechtenstein, for A. also stated that he could not remember when the

amount of 50,000.- Sfr had been blocked in order to found such a

corporation. Finally, H. stated that he could not remember who had

withdrawn the 9,000.- DM, though the bank's documents should show

this.

On 11 March 1988 the applicant's lawyer sent a written

statement to the Regional Court in which he explained the origins of

the 9,000.- DM which the applicant had withdrawn.

On 20 May 1988 the investigating judge cancelled the

international warrant of arrest issued against the applicant. The

applicant's lawyer was also informed that the proceedings were

terminated in respect of the amount of 9,000.- DM. Finally, the

investigating judge requested the Vienna Federal Police Direction

(Bundespolizeidirektion) to determine the whereabouts of the applicant

in Austria and to note the suspicion of having initiated in Austria

the offence of receiving stolen goods in Switzerland.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention of the length of the criminal proceedings instituted

against her. She notes that on 29 June 1982 the investigating judge

had ordered the institution of criminal proceedings against the

applicant on the grounds that she had withdrawn 9,000.- DM from a bank

account in Zurich. Yet in this respect no investigations have been

undertaken at all so far. This could have been done long ago by

assessing the statements of the bank account. Moreover, on 3 February 1986

only one bank employee was heard, and the investigating judge at the

Vienna Regional Court has since then not ordered the hearing of any

other bank employees.

The applicant submits that in view of her age she has been

hiding (verborgen) since 1981 at a place not known to the authorities

in order to avoid detention on remand.

THE LAW

The applicant complains of the length of the criminal

proceedings instituted against her. She claims that the authorities

have not pursued the investigations with sufficient speed. The

applicant submits that in view of her age she has been hiding since

1981 in order to avoid detention on remand. She relies on Article 6

para. 1 (Art. 6-1) of the Convention which states:

"1. In the determination of ... any criminal charge

against him, everyone is entitled to a .... hearing within a

reasonable time by an independent and impartial tribunal..."

The Commission notes that on 19 March 1981 criminal

proceedings were instituted, and a warrant of arrest was issued,

against the applicant. On 13 October 1982 the proceedings were

discontinued, though this decision was apparently not served on the

applicant's lawyer until 10 October 1984. On 26 September 1984, the

investigations against the applicant were resumed.

However, the Commission does not consider it necessary to

examine whether or not the length of these proceedings raises an issue

under Article 6 para. 1 (Art. 6-1) of the Convention, as the applicant

has been in hiding during the entire period of these investigations.

By acting in this way the applicant sought to evade justice.

The Commission considers that, when an accused person avoids

prosecution, he or she is not entitled to complain of the unreasonable

duration of the proceedings during his or her absence, unless

sufficient reasons are given which will rebut this assumption (see

Ventura v. Italy, Comm. Report, 15.12.80, D.R. 23 p. 91 para. 197;

No. 9429/81, Dec. 2.3.83, D.R. 32 p. 225).

The present applicant states as a reason for going into hiding

that in view of her advanced age she wanted to avoid detention on

remand. However, even assuming that an alleged danger to the

applicant's health could be relevant under Article 6 para. 1 (Art. 6-1)

of the Convention, the Commission finds that the applicant has neither

made nor substantiated such an allegation. It concludes that the

applicant has failed to rebut the above assumption.

The applicant is therefore not entitled to complain under

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

length of the criminal proceedings instituted against her. It follows

that the application is manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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