THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70883/01 by Rudolf and Karin HANNAK against Austria

The European Court of Human Rights (Third Section) , sitting on 9 July 2002 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan ,

Mrs H.S. Greve ,

Mrs E. Steiner , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 7 May 1999,

Having deliberated, decides as follows:

THE FACTS

The applicants, Rudolf and Karin Hannak, are Austrian nationals, who were born in 1933 and 1940 respectively and live in Wels. They are represented before the Court by Mr Selendi, a lawyer practising in Wels. The first applicant’s previous application no. 17208/90, also concerning the length of the criminal proceedings at issue as well as the length of bankruptcy proceedings instituted against him and restrictions upon his correspondance in this regard, was declared partly admissible. In a report adopted on 31 August 1994 under the former Article 31 of the Convention the European Commission of Human Rights found a violation of Article 6 § 1 as regards the length of both the criminal and the bankruptcy proceedings against the first applicant. At that time, criminal proceedings against him were still pending.

A. The circumstances of the case

The facts of the case, as submitted by the applicants , may be summarised as follows.

1. Criminal proceedings against the first applicant

a) First round of proceedings

On 1 December 1981 preliminary investigations were instituted against the first applicant.

On 9 March 1982 the applicant was first heard by the police.

On 4 April 1984 the Wels Regional Court ordered the applicant’s detention on remand.

On 20 April 1984 a bookkeeping expert was appointed.

On 30 August 1984 the applicant was released from detention.

Between 1985 and 1986, more than sixty witnesses were heard, some of them under letters rogatory . On 14 February 1986 the expert submitted a comprehensive opinion, as a result of which further witnesses were heard.

On 22 April 1987 the preliminary investigations were closed and the file, which comprised 15 volumes consisting of more than 500 documents, was transferred to the Wels Public Prosecutor’s Office ( Staatsanwaltschaft ).

On 6 July 1987 the Public Prosecutor’s Office charged the applicant and three co-accused (amongst them his wife, i.e. the second applicant) with continued aggravated fraud and with negligent and fraudulent bankruptcy ( fahrlässige und betrügerische Krida ) . The bill of indictment comprised 143 pages.

The applicant’s objection against the indictment filed with the Linz Court of Appeal ( Oberlandesgericht ) was to no avail.

On 30 May 1988 the Public Prosecutor’s Office requested the Supreme Court ( Oberster Gerichtshof ) that jurisdiction over the case be transferred to the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) on the ground that the applicant had moved to Vienna and that numerous witnesses were residing there. On 9 August 1988 the Supreme Court allowed the transfer. The file arrived at the Vienna Regional Court on 16 September 1988, which set trial hearings for the period between September and November 1989.

On 25 September 1989 the Vienna Public Prosecutor’s Office filed a request for transfer of jurisdiction to the Linz Regional Court since it had turned out that the applicant had not moved to Vienna. The Linz Regional Court was proposed by the Public Prosecutor’s Office on the ground that it was feared that all the judges of the Wels Regional Court could declare themselves biased as the applicant was one of their former colleagues. On 29 December 1989 the Linz Public Prosecutor’s Office requested that a trial hearing be fixed.

Subsequently the Linz Regional Court, sitting with two professional and two lay judges, suggested ex officio the re-transfer of the case to the Wels Regional Court, which was refused by the Linz Court of Appeal on 13 June 1990. On 22 June 1990 a first trial hearing was set for 18 December 1990.

Between 18 December 1990 and 5 September 1991, the Linz Regional Court, sitting with two professional and two lay judges, held 55 trial hearings against the applicant and his co-accused. Numerous witnesses as well as an expert on bookkeeping were heard.

On 5 June 1991 the applicant was again taken into detention on remand.

On 5 September 1991 the Linz Regional Court convicted the applicant on 29 counts of continued aggravated fraud ( gewerbsmässiger schwerer Betrug ), fraudulent bankruptcy ( betrügerische Krida ), fraudulent conversion ( Veruntreuung ) and false testimony ( falsche Beweisaussage vor Gericht ) and sentenced him to seven years’ imprisonment. The written version of the judgment comprising 692 pages was served on the applicant’s counsel on 11 December 1991.

On 7 January 1992 the applicant filed a plea of nullity and an appeal against sentence ( Nichtigkeitsbeschwerde und Berufung ).

On 9 April 1992 the applicant was released from detention on remand.

On 26 November 1992 the Supreme Court quashed the Linz Regional Court’s decision regarding the first applicant’s conviction relating to the counts on aggravated fraud and fraudulent bankruptcy, but confirmed his conviction as regards the other charges, quashed the sentence and referred the case to the Linz Regional Court for further proceedings. It reasoned that there were substantial grounds to cast doubt upon the impartiality of the bookkeeping expert.

b) Second round of proceedings

The new trial before the Linz Regional Court was scheduled for 9 March 1993. This decision was taken by a judge who had participated in the judgment of 5 September 1991. Following a successful objection lodged by the applicant with the Linz Court of Appeal, his case was assigned to another judge at the Linz Regional Court.

On 14 April 1993 the Supreme Court allowed the applicant’s request for transfer of jurisdiction back to the Wels Regional Court, because the concerns about possible bias no longer existed.

Subsequently, the Wels Regional Court divided the proceedings into two different sets:

The first set, relating to the applicant’s final conviction of fraudulent conversion and of having given false testimony, concerned the fixing of a sentence regarding these offences. The second set of proceedings related to the counts of aggravated fraud and fraudulent bankruptcy.

As regards the first set of proceedings, the Wels Regional Court, on 16 December 1993, sentenced the applicant to three years’ imprisonment, two of which were suspended on probation. As far as can be determined from the file, the applicant did not appeal. It appears that his requests for re-opening of these proceedings were to no avail.

As far as the second set of proceedings is concerned, the Regional Court, on 16 September 1993, remitted the file to the investigating judge for the preparation of a new report by a bookkeeping expert and for the conduct of further investigations, including the seizure of further accounting documents. On 14 December 1994 the expert requested the submission of these documents, which he inspected on 6 March 1995. On 7 November 1996 the first part of the expert report arrived at the court and the remainder on 16 April 1997.

On 9 August 1997 the file was transferred to the trial court, which, on 1 December 1997, fixed a hearing for 20 January 1998.

On 13 January the applicant filed a motion of bias against the presiding judge (A.S.) of the Wels Regional Court. He claimed that A.S. had also been presiding judge in the first set of proceedings before the Wels Regional Court. Further, he submitted that A.S. had been presiding judge of the Wels Regional Court Review Chamber ( Ratskammer ), which had reviewed the lawfulness of his detention on remand. He submitted that in 1984, in a hearing before the Review Chamber concerning the examination of the lawfulness of his detention on remand ( Haftprüfungsverhandlung ), A.S. had allegedly stated that the suspicion which had led to the applicant’s detention was “only the tip of a very large iceberg”.

After having heard A.S. on the applicant’s submissions, the President of the Wels Regional Court ( President des Landesgerichts ), on 15 January 1998, dismissed his motion. As regards the fact that A.S. had also presided at the first set of the proceedings, he stressed that what was at issue in these proceedings was the determination of a sentence for charges the applicant had been finally convicted of. Thus, no evidence had been assessed. Further, he noted that, in any event, these proceedings related to facts which were different from those at stake in the second set of proceedings. Insofar as the impugned statement was concerned, A.S. had stated that he could not remember having expressed such a view. In addition, he had submitted that, even supposing that the material statement had been made, it was to be qualified as a contribution to the then existing suspicion against the applicant. Stressing that the applicant’s allegations had remained unproven, the President of the Regional Court found that the expression “tip of an iceberg”, vague as it was, was not in itself sufficient to cast doubt upon the impartiality of A.S. Finally, the President found that the mere fact that A.S. had been involved in decisions on the lawfulness of the applicant’s detention on remand was not sufficient to conclude that he lacked objective impartiality. In this respect, he pointed out that the Review Chamber’s task was to examine whether there was a reasonable suspicion against a person being kept in detention on remand and that no assessment of evidence had to be made by that judicial body. Hence, he noted that special features going beyond such involvement were required to cast doubt upon a judge’s impartiality. In the present case, however, this was not so.

Between 20 January 1998 and 18 December 1998, the Wels Regional Court held numerous hearings and, on the latter date, partly acquitted the applicant, but convicted him of aggravated fraud and of several counts of negligent and fraudulent bankruptcy, and sentenced him to two years’ imprisonment.

The applicant filed a plea of nullity and an appeal against sentence.

On 2 December 1999 ( judgment served on 13 January 2000) the Supreme Court rejected the applicant’s plea of nullity and appeal against sentence. Insofar as the applicant had complained that the Regional Court had rejected specified requests for evidence, it found that the first instance court had acted correctly when it refused to take the evidence requested by the applicant. As far as the applicant had claimed that A.S. should have been disqualified ( ausgeschlossen ) from the proceedings in accordance with Section 68 of the Code of Criminal Procedure ( Strafprozessordnung ) due to his involvement in decisions on detention on remand, the court found that these submissions were inadmissible as they had not been previously raised before the first instance court ( Neuerungsverbot ). Moreover, it recalled that Section 68 of the Code of Criminal Procedure provided that a judge shall be disqualified from participating or deciding in the trial proceedings if he has acted as investigating judge in the same case. Noting that the examination of the lawfulness of a detention on remand by the Review Chamber fell outside the scope of activities of an investigating judge, the Supreme Court found that the applicant’s submissions were, in any event, ill-founded.

2. Criminal proceedings against the second applicant

On 12 April 1984, after criminal proceedings had been opened against her husband in December 1981, preliminary investigations were also instituted against the second applicant in the same matter.

On 15 April 1984 she was first heard by the police.

On 6 July 1987 the Wels Public Prosecutor’s Office preferred the indictment against her, her husband and two other co-accused.

As for the subsequent events until the beginning of the trial against the applicant on 18 December 1990, these are identical to the proceedings against the first applicant (see above, first round).

On 11 July 1991, namely the fifteenth trial day, the Linz Regional Court decided to disjoin the proceedings against the second applicant from those against the first applicant due to her poor state of health.

Subsequently, on an unspecified date, the proceedings were joined again.

On 20 January 1998, namely the first trial day in the second round of proceedings, the Wels Regional Court again decided to disjoin the proceedings against the second applicant from those against her husband on account of her poor health.

On 19 March 1998 proceedings against the second applicant were again reincorporated in the proceedings against her husband.

On 18 December 1998 the Wels Regional Court convicted the second applicant of aiding and abetting fraudulent bankruptcy and sentenced her to six months imprisonment suspended on probation.

On 28 May 1999 the written version of the judgment was served on the applicant’s counsel. Thereupon, the applicant filed a plea of nullity and an appeal against sentence ( Nichtigkeitsbeschwerde ).

On 2 December 1999 ( judgment served on 13 January 2000) the Supreme Court rejected her plea of nullity and appeal against sentence.

B. Relevant domestic law

According to Section 12 of the Code of Criminal Procedure the Review Chamber at the first instance court, sitting as a bench of three judges, is, inter alia , competent to decide on complaints and appeals against decisions taken by the investigating judge.

The functions of the Review Chamber concerning detention on remand may, according to the provisions in force at the relevant time, be summarised as follows:

Pursuant to Section 180 §§ 1 and 2 the investigating judge orders detention on remand if an accused is suspected of having committed a criminal offence, and if there is a danger of absconding, collusion or repetition.

The detainee may lodge an application for release at any time (Article 194 § 2). Under Articles 194 and 195, such an application is to be examined by the Review Chamber of the Regional Court in the presence of the accused and his lawyer. This review concentrates on the examination of the reasons given by the investigating judge as to the grounds of suspicion and the compliance with the supplementary conditions required for detention on remand, namely the danger of absconding, collusion or repetition.

Where no such application is lodged, the Review Chamber automatically reviews the lawfulness of detention when it has lasted for two months or when three months have elapsed since the last hearing and the accused does not have a lawyer (Article 194 § 3).

The decisions of the Review Chamber are open to appeal to the Court of Appeal ( Oberlandesgericht ).

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention about their convictions and the proceedings leading thereto. They submit that the Austrian courts refused all their requests for further evidence and that they wrongly assessed the relevant facts. Further, they submit that A.S., the judge presiding the second round of proceedings against them before the Wels Regional Court, was biased. They also complain that the criminal proceedings against them were not concluded within a reasonable time.

The applicants further complain under Article 2 of Protocol No. 7 that a plea of nullity under Austrian law was not a sufficient review within the meaning of this provision because in such proceedings the assessment of evidence by the trial court could not be attacked.

They also invoke Article 13 of the Convention.

THE LAW

1. Both applicants complain that the criminal proceedings instituted against them were not concluded within a reasonable time, as required by Article 6 § 1 of the Convention, which, insofar as relevant, reads as follows:

“In the determination  ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ... .”

a. As regards the second applicant, the Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

b. However, as for the first applicant, the Court observes that his previous application no. 17208/90 also related, inter alia , to the length of the criminal proceedings at issue. In a report adopted on 31 August 1994 under the former Article 31 of the Convention the European Commission of Human Rights found a violation of Article 6 § 1 in this respect.

The Court concludes that the period to be taken into account for the present application starts to run from 31 August 1994 as under Article 35 § 2 (b) it shall not deal with any application that is substantially the same as a matter that has already been examined by the Court.

The Court recalls that, in the case of Holzinger v. Austria, it has found that a request under Section 91 of the Courts Act is an effective remedy which has to be used in respect of complaints about the length of court proceedings (see Holzinger v. Austria , no. 23459/94, §§ 24-25, ECHR 2001, which relates to civil proceedings; see also Talirz v. Austria (dec.) no. 37323/97, 11.09.2001, relating to criminal proceedings). In the present case, however, the first applicant did not make use of this possibility and has, thus, failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

It follows that this part of the application has to be rejected pursuant to Article 35 § 4.

2. The applicants also complain under Article 6 of the Convention about their conviction and the alleged unfairness of the proceedings leading thereto.

Article 6 of the Convention, insofar as relevant, reads as follows:

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ...hearing ...

3. Everyone charged with a criminal offence has the following minimum rights: ...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

The Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts ( Garcia Ruiz v. Spain, no. 30544/96, § 28, ECHR 1999-I).

It seems, in the Court’s view, appropriate to look at the applicant’s complaints about the alleged unfairness of the criminal proceedings from the point of view of paragraphs 1 and 3 of Article 6 taken together, especially as the guarantees of paragraph 3 represent aspects of the concept of a fair trial contained in paragraph 1 ( Unterpertinger v. Austria judgment of 24 November 1986, Series A no. 110, p. 14, § 29).

a. The applicants complain that the Austrian courts wrongly dismissed their requests for further evidence to be taken.

The Court recalls, however, that as a general rule it is for the national courts to assess the evidence before them, as well as the relevance of the evidence which the defendant seeks to adduce. More specifically, Article 6 § 3 (d), in principle, leaves to them the assessment whether it is appropriate to call witnesses, in the “autonomous” sense given to that word by the Convention. The Convention does not require the attendance and examination of every witness on the accused’s behalf ( Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, § 89; Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33). In respect of witnesses on behalf of the accused, only exceptional circumstances could lead the Court to conclude that a refusal to hear such witnesses violated Article 6 ( Bricmont judgment , loc.cit ).

The Court notes that the applicants’ submissions in this regard are of a general nature. As far as can be determined from the transcript of the trial, the Wels Regional Court rejected some of the applicants’ requests for evidence, explaining in detail why such evidence was irrelevant to the proceedings. The Supreme Court carefully examined the explanations and found that the Regional Court had acted correctly in its refusal.

The Court finds no indication in the case-file that the refusal to take all the evidence requested by the applicant was incompatible with Article 6, or that thereby the applicant’s defence rights were unduly restricted or the proceedings unfair.

b. The applicants submit that they did not have a hearing before an independent and impartial tribunal established by law as the presiding judge in the second round of proceedings before the Wels Regional Court had also been involved in the taking of decisions on the lawfulness of the first applicant’s detention on remand.

The Court recalls that the existence of partiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, the Gautrin and Others v. France judgment of 20 May 1998, ECHR 1998-III, pp. 1030-1031, § 58).

As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see, among other authorities, the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, § 26).

Under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see the Gautrin and Others judgment cited above, loc. cit.; Morel v. France , no. 34130/96, 6 June 2000, §§ 40-42).

In this regard, the Court has previously held that the mere fact that a judge has also made pre-trial decisions in the case cannot be taken as in itself justifying fears as to his impartiality (see the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 22, § 50). Although this statement referred to systems such as that of Denmark, where investigation and prosecution are exclusively the domain of the police and the prosecution, it must also be of some relevance to systems of an inquisitorial character, such as that of Austria. What matters is the extent and nature of the pre-trial measures taken by the judge (see, mutatis mutandis , the De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, pp. 15 ‑ 16, §§ 29-30, the Nortier v. the Netherlands judgment of 24 August 1993, Series A no. 267, p. 15, § 33; the Saraiva de Carvalho v. Portugal judgment of 22 April 1994, Series A no. 286-B, p. 38, § 35).

In the instant case, the fear of lack of impartiality was based on the fact that A.S., the presiding judge in the second round of proceedings before the Wels Regional Court, had previously been a presiding member of the Wels Regional Court’s Review Chamber. In this function, he had taken decisions on the lawfulness of the first applicant’s detention on remand.

The Court notes that the issues which A.S. had to examine, when taking decisions on remand, were not the same as those decisive for his final judgment . When deciding on the lawfulness of the first applicant’s detention on remand, he summarily assessed the available data in order to ascertain whether prima facie the prosecuting authorities had grounds for their suspicion. As a trial judge, however, he had to assess whether the evidence that had been produced and debated at the hearing was sufficient for finding the accused guilty.

In these circumstances, the Court finds that the applicants’ fears cannot be held to have been objectively justified.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3. The applicants complain that the review of their convictions under Austrian law was insufficient for the purposes of Article 2 of Protocol No. 7 because the Supreme Court was prevented from re-examining the question of their guilt and was only competent to examine whether procedural defects had occurred.

Article 2 of Protocol No. 7, insofar as relevant, reads as follows:

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.”

The Court recalls that the Contracting States may limit the scope of the review by a higher tribunal by virtue of the reference in paragraph 1 of this Article to national law. In several Member States of the Council of Europe such a review is limited to questions of law or may require the person wishing to appeal to apply for leave to do so ( Pesti and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, 18.1.2000).

The Court observes that the applicants could and did file a plea of nullity with the Supreme Court in which they complained about procedural defects in their trial. Furthermore, they lodged an appeal against sentence which was also examined by the Innsbruck Court of Appeal. The Court therefore finds that the review of the applicants’ conviction by the Austrian courts was sufficient for the purposes of Article 2 of Protocol No. 7 ( Pesti and Frodl v. Austria (dec.), loc. cit.). Accordingly, there is no appearance of a violation of that provision.

It follows that also this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must also be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the second applicant’s complaint concerning the length of proceedings;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President