DISSENTING OPINION OF MR K. HERNDL

The reasons for which I do not subscribe to the majority's view that in the present case the length of criminal proceedings was excessive and failed to meet the "reasonable time" requirement (para. 35 of the Report) are easy to explain. They are as follows:

I. The period to be considered

The majority take as their point of departure an "overall period" of seven years and five months while in my opinion the period to be taken into account is just four years. The majority arrive at their total figure by simply adding a "first set of proceedings" (which in 1986/87 resulted in the applicant's final conviction on a charge of murder) to a "second phase" (starting with the applicant's request for reopening and ending with the final acquittal) (para. 29).

In my view the "first set of proceedings" falls clearly outside the framework of the present application. The proceedings conducted in 1986/87 do not raise any problem under the Convention. They are not covered by the present application which concerns exclusively "the length of the reopened criminal proceedings against [the applicant]" (see the Commission's admissibility decision of 10 September 1997). If the "first set of proceedings" has to be excluded altogether from consideration, the following question arises: When did the "second phase" actually start ?

The majority assume that this phase started with the applicant's request for reopening, i.e. 6 September 1990 (para. 29). The reopening, however, was granted by the competent Court only on 15 June 1992. That date, and no date earlier, marks therefore the starting point of the period to be taken into consideration. This is even explicitly recognised by the majority: "On 15 June 1992 the criminal proceedings... were reopened...; after the reopening of the proceedings the applicant was again someone charged with a criminal offence" (para. 28). The conclusion is obvious: As far as the determination of a criminal charge is concerned, Article 6 can only be said to apply from that point in time onwards. The duration of the proceedings starting with the request for reopening and ending with the decision to actually reopen, falls outside the scope of application of Article 6. No analogy would seem to exist between the present case and the case of Poiss v. Austria to which the majority refer (para. 29). Poiss concerned exclusively civil rights and obligations, which were decided upon in several stages. Here, we are dealing with a criminal case to which the Commission's consistently held view applies that Article 6 "does not apply to proceedings for the reopening of criminal proceedings, given that someone who applies for his case to be reopened and whose sentence has become final is not 'charged with a criminal offence' within the meaning of the said Article" (Nos. 19255/92 and 21655/93 joined, Dec. 16.5.95, D.R. 81, p. 5 at p. 13). The only period to be taken into account when assessing the "reasonable time" in the present case is accordingly the period from 15 June 1992 up to the applicant's final acquittal on 29 August 1996.

2. The complexity of the case

On first glance a period of some four years for criminal proceedings in one instance may appear as excessive. The present case, however, contained a series of elements which apparently made it difficult for the authorities to speed up the matter. In particular, the main witness whose testimony was essential and who had moved to the United States, had to be traced and contacted there, served the summons and later be brought to Austria to give her evidence. Further, it became necessary to obtain expert advice, based on a DNA analysis, on traces of fibres . The expert report was not ready before October 1995. The trial took place in August 1996, i.e. ten months later, following a change in the person of the Presiding Judge. Moreover, as the applicant had challenged the original bill of indictment - the challenge being upheld by the Appeals Court - a new bill of indictment had to be prepared in time. Elements such as these underline the inherent complexity of the case. The majority themselves concede that "the proceedings ... may have been somewhat complex" (para. 34), but consider that these elements were not sufficient to explain the overall length. Taken together, however, these elements would in my eyes tend to show that the case which received increased publicity, was indeed complex enough to justify a thorough preparation taking quite some time. One should also not lose out of sight the fact that throughout the incriminated period the applicant was at liberty.