AS TO THE ADMISSIBILITY OF

                       Application No. 11688/85

                           by Hannes MLYNEK

                            against Austria

        The European Commission of Human Rights sitting in private on

16 October 1986, the following members being present:

                    MM. C.A. NØRGAARD, President

                        J.A. FROWEIN

                        E. BUSUTTIL

                        G. JÖRUNDSSON

                        G. TENEKIDES

                        S. TRECHSEL

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        J.C. SOYER

                        H.G. SCHERMERS

                        H. DANELIUS

                        G. BATLINER

                        H. VANDENBERGHE

                   Mrs  G.H. THUNE

                   Sir  Basil HALL

                   Mr.  F. MARTINEZ

                   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 2 May 1985 by

Hannes MLYNEK against Austria and registered on 9 August 1985 under

file No. 11688/85;

        Having regard to:

-       the Rapporteur's request to the respondent Government of

        21 October 1985 for information under Rule 40 para. 2 (a)

        of the Rules of Procedure of the Commission;

-       the information provided by the respondent Government on

        15 November 1985 and the reply submitted thereto by the

        applicant on 18 December 1985;

-       the first report of December 1985 provided for in Rule 40 of

        the Rules of Procedure of the Commission;

-       the Commission's decision of 3 March 1986 to bring the

        application to the notice of the respondent Government and

        invite them to submit written observations on the

        admissibility and merits of the application;

-       the observations submitted by the respondent Government on

        20 May 1986 and the reply submitted thereto by the applicant

        on 6 June 1986;

-       the further information submitted by the respondent Government

        on 29 July 1986 and the reply submitted thereto by the

        applicant on 11 August 1986;

-       the second report of September 1986 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, an Austrian citizen born in 1943, is a lawyer

resident in Vienna.

        On 21 May 1981 criminal investigations were instituted against

the applicant and other persons in respect of various economic offences

standing in connection with the bankruptcy of the Oesterreichische

K.-T. company.  In particular, Dr. K., the chairman of the board of

directors of the E. Union AG, was charged with misappropriation of

funds on the occasion of a participation in the share capital increase

of the K.-T. company amounting to 32.2 million A.S.  Messrs. T. and S.

as well as the applicant were charged with participation in this

offence, moreover Messrs. T. and S. with extricating a loan of 25

million A.S. from a bank and Dr. K. and the applicant with

participating in this offence.  The applicant was thereupon detained

on remand from 1 July until 20 July 1982 on the ground of danger of

collusion.

        On 20 April 1983 the applicant together with Dr. K. and Mr. S.

were indicted at the Vienna Regional Court sitting with lay judges

(Landesgericht als Schöffengericht).  The bill of indictment counted

183 pages.  The proceedings in respect of Mr. T. were separated after

he was released from custody and had subsequently absconded.

        The hearing (Hauptverhandlung) before the Vienna Regional Court

lasted from 2 December 1983 until 30 May 1984.  During this period of

time, 55 hearings (Verhandlungstage) were conducted.  Up to the hearing

the case-file consisted of 63 volumes, thereafter of 81 volumes.

During the hearing 120 witnesses were heard.  The minutes of the

hearing consisted of 7,150 pages.  In addition there were some 40

volumes of expert opinions and other evidence.  After the evidence

proceedings were closed there followed the pleadings of the parties

lasting eight days, and the deliberations of the Court lasting four

days.

        On 30 May 1984, at its fifty-fifth hearing, the Vienna Regional

Court pronounced its judgment.  The bench was composed of two

professional and two lay judges.  The applicant was convicted of

misappropriation of funds (Untreue) and fraud and sentenced to six

years' imprisonment.  Mr. S. and Dr. K. were sentenced to six and eight

years' imprisonment, respectively.  The applicant announced at the

hearing that he would file a plea of nullity (Nichtigkeitsbe- schwerde)

and an appeal (Berufung).  The minutes of the hearing on 30 May 1984

were served on 4 June 1984.

        Also on 30 May 1984 the applicant was detained on remand on the

ground of danger of absconding.  His detention lasted until 2 August

1984.        On 2 July 1986 the judge charged with the motivation

(Ausfertigung) of the Court's judgment of 30 May 1984 transmitted the

motivation to the Vienna Regional Court.  It was communicated to the

parties on 3 July 1986, as the Government state, or on 4 July 1986, as

the applicant submits.  The motivation counts 1197 pages.

COMPLAINTS

1.      The applicant complains under Article 6 para. 1 of the

Convention that he received the motivation of the judgment which was

pronounced on 30 May 1984, only on 4 July 1986, i.e. more than 25

months later.  An essential part of the Court proceedings was therefore

not terminated within a reasonable time in the meaning of Article 6

para. 1.  This delay is also contrary to Section 270(1) of the Austrian

Code of Criminal Procedure which states:

        "Every judgment must be motivated in writing within

        fourteen days from the date of the pronouncement and must be

        signed by the president as well as the reporter

        (Schriftführer)."

        According to Section 285 of the Code of Criminal Procedure a

complainant is granted a period of fourteen days after the motivated

judgment has been served in order to substantiate his plea of nullity.

        The applicant contends that, while in theory he still had to

be considered innocent, in fact he suffered considerable disadvantages

on account of this delay in respect of his economic situation and his

honour.  He submits that there is no remedy in Austria at his disposal

to complain about this undue length of time required for the motivation

of the judgment.

2.      The applicant submits that the written judgment should not be

prepared (erstellt) but only written reasons added after the Court has

pronounced its judgment.  The reasons of the judgment must have been

prepared before its pronouncement.  If this is not the case, it will

not be a tribunal established by law but a single judge who is

deciding.  In view of the fact that the Court required four days to

deliberate the decision and that the motivated judgment was served more

than 25 months later, the applicant submits that the judgment in fact

still had to be prepared.  He complains that the judgment has,

therefore, not been given by a "tribunal established by law" within the

meaning of Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 2 May 1985 and registered on

9 August 1985.

        On 1 October 1984 the Rapporteur decided to request information

from the respondent Government pursuant to Rule 40 para. 2 (a) of the

Commission's Rules of Procedure as to whether the motivation of the

judgment had been served upon the applicant.

        The information was provided by the respondent Government on

15 November 1985, and the reply thereto was submitted by the applicant

on 18 December 1985.

        On 3 March 1986 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 in respect of the

complaint under Article 6 para. 1 concerning the length of the

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

        The respondent Government's observations were submitted on 20

May 1986 and the reply thereto by the applicant on 6 June 1986.

        The respondent Government submitted further information on 29

July 1986 and the applicant replied thereto on 11 August 1986.

SUBMISSIONS OF THE PARTIES

A.      The respondent Government

I.      The application and the facts (see THE FACTS above)

        The respondent Government point out that in his complaint the

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

(length of proceedings).  He argues in particular that under Section

270 (1) of the Code of Criminal Procedure any judgment has to be

available in written form within a period of 14 days.

II.     Requirement under Article 26 of the Convention

        The applicant complains that on account of the delay in

motivating the previously pronounced judgment he has suffered economic

damage.  If, however, it is claimed that such damage was due to the

unlawful and culpable conduct of a public authority - as the applicant

maintains - a complaint could have been filed in accordance with the

Official Liability Act for damage caused by one of the State's organs.

It would first of all certainly fall to the regular Courts to decide

on the damage alleged by the applicant.  If damages were awarded, the

applicant would no longer be considered a victim of a violation of the

Convention.

III.    Admissibility and merits of the application

1.      In accordance with the consistent practice of the European

Court of Human Rights, the following criteria have to be used to judge

the appropriateness of the length of the proceedings:  the complexity

of the case; the applicant's conduct; and the conduct of the competent

authority.

2.      The present proceedings involved an economic offence and are

based on very complex and comprehensive facts.  In this regard,

reference is made to the number of files, hearings and witnesses.  The

objection raised by the applicant, namely that within the framework of

the prosecution against himself investigations were carried out

involving more than 40 persons, cannot disprove the argument of the

complexity of the case.  Rather, the objection reflects the great

variety of intricate business implications which the competent judge

had to review and to assess within the framework of the proceedings

instituted against the applicant.  It was not possible to consider the

conduct of the applicant in isolation, as it is above all the context

of the offences committed by the other accused from which the

illegality of the applicant's conduct results.

3.      The conduct of the applicant may be disregarded in the present

case as he could not influence the motivation of the judgment.

4.      As regards the conduct of the competent authority the

Government refer to the Guincho case, in which the European Court of

Human Rights decided that delays may be justified if the Courts become

overburdened by a sharp increase in business (judgment of 10 July 1984,

Series A no. 81).  Such delays, however, would have to be kept as short

as possible by the State.  The question of the workload of the

competent judge, resulting from other pending cases after the time when

the judgment was pronounced until April 1986, has been answered by the

Government in detail.  From the submitted chart it appears that on 30

July 1984 the respective judge sat alone in several hearings.  In

November 1984 she sat in four hearings.  In 1985 she sat in

approximately 80 hearings lasting between ten minutes and seven hours

and on average four hours each.  Between 7 January and 9 April 1986 the

judge again sat in 31 hearings.

        As head of the department 3d) of the Vienna Regional Court, the

judge was exempted from new business in view of the conduct of the

present proceedings from 1 July 1983 until 31 December 1984.  Until 30

June 1983, she was allocated a total of 119 new cases.  In 1984, there

were eight new proceedings (appeal proceedings, resumption of a case

after interruption, ending of older proceedings).

        As from 1 January 1985, the judge was put in charge of the

newly established economic crimes department 12b).  From 5 March 1985

to 31 December 1985, she was also exempted from new business there on

account of the so-called "WBO-case" (another spectacular economic

criminal prosecution); at the same time, however, she remained in

charge of (also future) proceedings connected with this case.

        In this Court department, the judge had to deal with a total

of 18 criminal cases between 1 January and 4 March 1985, and a total

of 24 between 1 January and 31 March 1986.

        In the jury department 20v), which has been headed by the

respective judge concerned since 1 July 1983, there were four cases in

1983, four cases in 1984, five cases in 1985 and one case until March

1986. Of these, two were terminated in 1983, four in 1984, and six in

1985, so that the only unsettled jury case is the one of 1986.

5.      On the part of the competent supervisory authority, the

following steps were taken in order to attain the motivation of the

judgment at issue:  In view of the extraordinary extent of the

proceedings (81 files, 55 hearing days, 7,150 pages of the trial

minutes) and the fact that the supervisory panel (Personalsenat)

ordered that no new cases were to be referred to the head of the

department 3d), the motivation of the judgment was initially monitored

only on the basis of the respective monthly reports.

        Later on, the motivation was checked in the course of an

administrative supervision procedure, the competent judge stating in

her reports to the president of the Court of Appeal that the motivation

of the judgment progressed steadily and would be completed soon.  As

the judge did not keep the deadlines set for her, the president of the

Court of Appeal took disciplinary action against her in early November

1985.  The disciplinary proceedings, during which a hearing was held

on 25 April 1986, are still pending.

        Furthermore, the supervisory panel of the Vienna Regional Court

decided on 21 April 1986 to appoint as of 1 May 1986, until further

notice, another judge as deputy head of the economic crimes department

12b) in order to end the delay in the motivation of the judgment.  As

a result, the competent judge guaranteed the motivation by the end of

June 1986.

6.      In view of the consistent practice of the European Court of

Human Rights, according to which delays cannot entail responsibility

of the State if the latter takes immediate appropriate remedial action

(cf. judgment of Zimmermann and Steiner of 13 July 1983, Series A no.

66), the Government submit that the delay that has occurred is a result

of the complexity of the case and that the competent authorities took

all possible measures to expedite the motivation of the judgment

(exemption from new business; monitoring by the supervisory authority;

disciplinary action; as well as relieving the judge as head of the

department 12b).  However, considering the constitutionally ensured

principle of the independence of judges, guaranteed by the rules of

irremovability and intransferability, as well as the resulting

principle of the fixed allocation of business, delays may occur in the

interest of the certainty of law as long as, in exceptional cases,

judges who do not satisfy the requirements which they are expected to

meet may be transferred within the framework of disciplinary

proceedings.  Another judge can then be appointed as head of the

department.  In this respect the outcome of the disciplinary

proceedings must now be awaited.

        Realistically speaking, there is always the possibility that

a certain judge is not able to cope with particularly complex

proceedings.  In such a case, however, the State can be made

responsible under the Convention only insofar as arrangements have to

be made that lead to a (in this case: written) decision.  In the

present case, this has been done as the above explanations show.

7.      It is inaccurate if the applicant alleges that a violation of

Section 270(1) of the Code of Criminal Procedure constitutes a

violation of Article 6 para. 1 of the Convention.

        The case of Crociani et al. which was based on similar facts

was declared inadmissible by the European Commission of Human Rights

on grounds of evident non-existence of a Convention violation (Nos.

8603/79, 8722/79, 8723/79, 8729/79, Dec. 18.12.1980, DR. 22 p. 147).

Also in a decision of the European Commission of Human Rights it was

stated that a violation of Section 270(1) of the Code of Criminal

Procedure did not constitute a violation of Article 6 para. 1 of the

Convention, even if the motivation of the judgment is not available

eight months after its pronunciation (No. 4459/79, Dec. 3.4.71,

Collection 38 p. 44).

8.      This opinion can also be shared inasmuch as the applicant

suffered no disadvantage from the fact that the judgment was not

motivated sooner.

        In the trial of 30 May 1984, the decision was publicly

pronounced.  Subsequently, an explanation of the essential underlying

reasons was given.  Contrary to the statements of the applicant, there

existed then already a draft version of the judgment of some 80 pages.

        The fact that the motivation of the judgment, the essentials

of which had already been communicated to the applicant, was not served

on the applicant until 3 July 1986 only means that the applicant did

not have to begin serving his sentence of six years' imprisonment in

view of the fact that the judgment had not entered into legal force due

to a plea of nullity and an appeal to a higher Court.  In its decision,

the Supreme Court will certainly have to take into consideration the

specific circumstances of the case.  As a result, the applicant may

possibly rather enjoy an advantage from the delay.

IV.     Summary and motion

        In summing up, it transpires from the application that in the

light of the above considerations there is no violation of Article 6

para. 1 of the Convention and the application will have to be declared

inadmissible as being manifestly ill-founded.

        If, despite the above considerations, however, the Commission

should declare the present application admissible, reference may be

made, also in respect of the merits of the case, to the above

explanations which equally demonstrate that there is no violation of

the Convention.

B.      The Applicant

I.      The application and the facts (see THE FACTS above)

1.      The applicant states that the motivation of the judgment at

issue was only served on him on 4 July 1986.  The domestic appeal

proceedings will now, after an unlawful delay of some 25 months, again

begin to run their course.

        Nevertheless, the applicant confirms his application to the

European Commission of Human Rights.  A delay of more than 25 months

to motivate a judgment which should, by law, have been served within

14 days violates the right to a hearing within a reasonable time

enshrined in the Convention.  Beyond the circumstances of the present

case, the administration of justice in Austria stands to gain by a

decision in Strasbourg on a case of this kind.

2.      The applicant submits that he has never claimed that a breach

of Section 270(1) of the Code of Criminal Procedure will in itself

constitute a human rights violation.  Moreover, he only lodged his

application well after the eight month period on which a decision was

taken in the case No. 4459/79 (Dec. 3.4.71, Collection 38 p. 44).  His

application was filed at a time when the serving of the motivation of

the judgment had already been delayed for 11 months, and indeed it was

only served more than 25 months after the judgment was pronounced in

Court.  Nevertheless, a breach of Section 270(1) does indeed constitute

a violation of the Convention when the actual delay in motivating the

judgment goes beyond a certain limit.  When this happens, a breach of

the time-limits laid down in Austrian procedural law (something which

the Government in their observations regard as entirely normal) ceases

to be merely quantitative and becomes of qualitative relevance too,

thus violating the Convention as well.

        This point of view is fully consistent with that expressed by

Mayerhofer/Rieder in their commentary on the Austrian Code of Criminal

Procedure with regard to Section 281(3) of the Code of Criminal

Procedure (2nd ed. 1984, p. 788 at footnote 8).  According to these

authors, when the proper duration of criminal proceedings up to the

motivation of the judgment is exceeded through delay in motivation,

this may very well violate Article 6 para. 1 of the Convention, though

it does not constitute a ground of nullity.  This note refers to the

above-mentioned case No. 4459/79 in which the motivation of the

judgment was delayed for eight months.

II.     Requirement  under Article 26 of the Convention

        The Government argue next that the applicant could have

remedied the economic damage caused by the delay in providing the

motivation of the judgment by bringing a domestic action alleging State

liability for damage caused by one of its agencies.  In the applicant's

submissions, the Government ignore the fact that the application is not

concerned solely with economic damage, but also with the damage clearly

caused by the delay to his and his family's reputation, and with the

severe mental anguish which he suffered on this account.  The economic

damage is only part of the overall damage resulting from the delay.

In any event, an action alleging State liability is unlikely to

accelerate proceedings.  According to the Commission's case-law in

respect of Article 26 of the Convention, complaints and State liability

actions are a possibility, but are not adequate to accelerate

proceedings the undue length of which is the object of the complaint.

A State liability action, like a disciplinary complaint, cannot

therefore be regarded as a domestic remedy required under Article 26

of the Convention.

III.    Admissibility and merits of the application

1.      As regards the complexity of the proceedings, the Government

have attempted to refute the applicant's argument that facts were

investigated which had absolutely nothing to do with the charges.  In

doing so, the Government try to argue that the applicant's conduct had

to be seen, not in isolation, but in the context of the offences

committed by the other accused.  This ignores the fact that, although

40 persons were involved in the preliminary investigation phase, only

three accused were left once proceedings against Mr. T. were

discontinued who had been released from detention on remand and had

absconded.

2.      It is hard to form an idea, from the time schedule supplied by

the Government, of the actual workload of the judge concerned.  It is

clear, however, that a series of hearings lasting 10-30 minutes were

held up to July 1985, whereas the various proceedings in the "WBO-case"

began in August 1985.  At any rate, the schedule does not indicate that

the judge's workload was particularly heavy in early 1985.  Later she

would have had a period of more than one year, during which exemption

from new cases and a clearly reduced workload would have given her time

to prepare the motivation.

3.      The Government argue that delays may be justified under the

Convention if the Courts are overburdened, and that the State cannot

be held responsible when a particularly heavy workload prevents a judge

from doing his work rapidly.  In answer to this it must be said that

the State is necessarily responsible for the conduct of its

representatives - particularly since it is not merely negligence by the

judge in question which is at issue.

        As stated in the Government's observations, the judge in

question was put in charge of the new economic crimes department 12b)

of the Vienna Regional Court on 1 January 1985.  This means that she

was appointed at a time when the delay in serving the motivation had

already lasted seven months and was thus exceptional to start with (the

first date promised by the judge to the defence counsel in the case for

the motivation was October 1984).  Subsequently, and although the case

was, as the observations point out, particularly complex, nothing was

done to help the judge to conclude it for example by granting her

exemption from new cases.  On the contrary, she was given additional

work.

4.      The Government state that the President of the Court of Appeal

took disciplinary action against the judge in early November 1985.

However, it must be noted that the authorities waited one and a half

years before taking this action.  This makes it impossible to accept

the Government's claim that "all possible measures (were taken) to

expedite the motivation of the judgment".  Disciplinary supervision

clearly had no effect.  The judge was insufficiently exempted from new

cases and she herself was relieved as head of the economic crimes

department 12b) to which she had been appointed - clearly on the basis

of an inaccurate assessment of her workload and/or capacity for work

- on 1 January 1985, at a time when judgment in the applicant's case

had already been pending for seven months.

5.      The Government state that the applicant suffered no

disadvantage from the fact that the judgment had not been motivated,

the only effect being that he had not yet had to begin serving the

prison sentence.  The Government further speculate as to how this

circumstance will affect the judges in the Supreme Court and suggest

that it may even work to the applicant's advantage.

        The only conclusion to be drawn from this is that the

provisions of the Human Rights Convention are, at least in the opinion

of the respondent Government, wholly misconceived.  It is obviously

assumed that the applicant shall definitely have to serve a prison

sentence, and not the faintest allowance is made for the possibility

that the judgment given at first instance may be altered on appeal. In

the applicant's view, the Government's observations blatantly

contravene Article 6 para. 2 of the Convention, since there is a clear

presumption that he is guilty, whatever happens.  The Government's

observations also consider that proceedings of maximum length can only

benefit the person concerned, and this clearly suggests that Article

6 para. 1 of the Convention is seen as being either completely

misconceived or inapplicable in Austria.

6.      The suggestion that the judgment caused the applicant no

disadvantage is answered as follows.

        Prior to judgment, the applicant was manager of the firm which

he is alleged to have defrauded in collusion with the chairman of the

board.  The firm did not participate as a private party in the criminal

proceedings against the applicant and took no disciplinary action

against him, but continued to employ him as it had before the K.-T.

company collapsed.  The relevant sections of the firm do not therefore

regard the applicant as having caused them any damage, and no one has

suggested that he intentionally set out to cause such damage, which

would have been necessary to make the applicant an accessory to the

misappropriation of funds.

        The fact that these accusations have now been made in a

judgment - even an oral judgment - caused the applicant considerable

damage since, quite apart from the merely human aspects and the effects

on his family's reputation, his employers have also suspended him

without pay until the case has been cleared up.  Even so they have not

chosen to dismiss the applicant without notice.  The applicant has also

had to suffer during this period of more than two years all the

disadvantages of being largely debarred from practising his profession,

since the "presumption of innocence" by no means applies in practice

to a person who has not been finally convicted and is trying to work

in business or the law.  Notwithstanding the contrary view so strangely

put forward by the Government in their observations, this state of

uncertainty, which will last until the case has been decided with legal

force is so clearly to the applicant's disadvantage that he prefers to

say nothing further on this point.

        Finally, to secure his release from detention on remand, the

applicant was obliged to find bail of 2,500,000 AS.  The cost of

finding bail obviously increases with time, and clear financial damage

thus results from the failure to finalise the judgment.

IV.     Summary

        A breach of Section 270(1) of the Code of Criminal Procedure

constitutes a violation of the European Convention on Human Rights when

a time-limit is exceeded which makes the failure to motivate the

judgment appear unreasonable as part of the overall length of the

proceedings.

        The judge's repeated promises to motivate the judgment, which

have been cited in the Government's observations, are a clear

indication that the Court considered that this could have been done

sooner.

        The Government's observations show that the judge's work-load

was not excessively increased by major cases until August 1985, when

the reasonable time for motivating the judgment had long since expired.

        The action taken to remedy this situation, referred to in the

Government's observations, is thus irrelevant, because it came too late

and because, to some extent, instead of decreasing, it actually

increased the work-load of the judge who, although she had already

fallen behind, was given responsibility for a new department on 1

January 1985.

        Failure to motivate the judgment has caused the applicant very

substantial non-material and material damage.

        On the basis of the above, the applicant requests the

Commission to declare the present application admissible and to find

a violation of the Convention.

THE LAW

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

the Convention that he received the motivation of the judgment which

was pronounced on 30 May 1984, only on 4 July 1986, i.e. more than 25

months later.  An essential part of the Court proceedings in which he

continues to be involved was therefore not concluded within a

reasonable time in the meaning of Article 6 para. 1 (Art. 6-1).  As a

result of the delay in motivation he has suffered both material and

immaterial damage.  The applicant also submits that there is no remedy

at his disposal under Austrian law to complain of this undue length of

time required for the motivation.

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

        "1.     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."

a)      The Commission notes at the outset that is is not in dispute

between the parties that the proceedings at issue concern "the

determination of ... criminal charge" against the applicant and

that his complaints therefore fall to be considered under Article 6

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

b)      The Commission furthermore recalls its constant case-law

according to which a complaint under Article 6 para. 1 (Art. 6-1)

concerning the length of proceedings may be brought even before the

termination of the proceedings in question (see No. 7987/77, Dec.

13.12.79, D.R. 18 p. 31).

c)      In their submissions summarised above the respondent Government

point out in respect of Article 26 (Art. 26) of the Convention that the

applicant has not exhausted all remedies at his disposal within the

meaning of that provision.  In particular, insofar as the applicant

complains of having suffered economic damage on account of the delay

at issue, he could, if such delay was due to the unlawful and culpable

conduct of a public authority, have filed a complaint in accordance

with the Official Liability Act for damage caused by one of the State's

organs.  If damages were awarded, the applicant would no longer be

considered a victim of the Convention.

        Under Article 26 (Art. 26) of the Convention the Commission may

only deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

        In respect of the present complaint, the Commission recalls its

constant case-law concerning the length of criminal and civil

proceedings according to which there is no remedy available to the

applicant under Austrian law (see No. 7987/77, ibid).

        It is true that in his application the applicant has referred

to material damage resulting from the delay in motivation.  In the

Government's submissions, such a damage could be remedied by an action

under the Official Liability Act.

        However, the Commission notes on the one hand that the

applicant has also alleged immaterial damage.  On the other hand, he

has alleged such negative consequences in order to demonstrate that he

has been substantially affected by the delay in motivation.  In fact,

the applicant's complaints under Article 6 para. 1 (Art. 6-1) are

directed primarily against the length of the criminal proceedings in

which he continues to be involved.  The object of the applicant's

complaint thus extends beyond that of a material damage as required by

the Official Liability Act.  Moreover, an action under this Act would

not serve to remedy the applicant's complaints by accelerating the

proceedings (see No. 4459/70, Dec. 3.4.71, Collection 38 p. 44).

        The Commission concludes that the action under the Official

Liability Act cannot therefore be considered an effective remedy within

the meaning of Article 26 (Art. 26), and that the applicant had no

other such remedy at his disposal.  The complaint cannot, therefore,

be rejected under Article 26 (Art. 26) of the Convention for

non-exhaustion of domestic remedies.

d)      The Government have submitted that the complaint at issue is

manifestly ill-founded.  In particular, the delay can be explained by

the fact that the proceedings were based on very complex and

comprehensive facts.  Moreover, the judge in question was overloaded,

though the competent authorities took all possible measures to expedite

the motivation of the judgment.  In view thereof, the State can no

longer be held responsible under the Convention.  The alleged breach

of Section 270(1) of the Austrian Code of Criminal Procedure does not

in itself entail a violation of the Convention.  Finally, the

Government point out that the applicant suffered no disadvantage from

the fact that the judgment was not motivated sooner.

        The Commission considers that the complaint concerning the

length of the criminal proceedings in which the applicant continues to

be involved raises difficult questions of fact and law which are of

such complexity that their determination should depend on an

examination of the merits.  This part of the application is therefore

not manifestly ill-founded and must be declared admissible, no other

grounds for declaring it inadmissible having been established.

2.      The applicant also complains under Article 6 para. 1 (Art. 6-1)

of the Convention that the judgment was not given by a "tribunal

established by law" within the meaning of that provision.  In

particular, the written judgment should, after its pronouncement, no

longer have to be prepared (erstellt) but only written reasons added.

In view of the fact that 25 months lapsed after the motivation was

served on the applicant, he submits that the judgment in fact still had

to be prepared by a single judge.

        The Commission notes that the applicant has not shown that he

raised this complaint before the competent Austrian Courts.  An issue

arises therefore as to whether the applicant has exhausted domestic

remedies as required by Article 26 (Art. 26) of the Convention.  The

Commission nevertheless decides not to resolve this question since this

part of the application is in any event inadmissible for the following

reasons:

        The Commission observes that the applicant has not alleged that

the Vienna Regional Court which convicted the applicant was not

"established by law" within the meaning of Article 6 para. 1 (Art. 6-1)

in that, for instance, it was not the competent jurisdiction to deal

with the applicant's case.  Rather, the applicant solely deduces from

the delay in motivating the judgment the conclusion that a single judge

had prepared the decision rather than the Court consisting of two

professional and two lay judges.  However, the Commission considers

that the delay in motivating does not in any way imply that it was a

single judge rather than the Court which prepared the judgment.

        Accordingly, this complaint does not disclose any appearance

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

Commission concludes that this part of 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

1.      DECLARES ADMISSIBLE, WITHOUT PREJUDGING THE MERITS,

        THE COMPLAINT CONCERNING THE LENGTH OF PROCEEDINGS (PARA.

        1 OF THE LAW); AND

2.      DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.

Secretary to the Commission                President of the Commission

      (H.C. KRÜGER)                               (C.A. NØRGAARD)