DISSENTING OPINION OF Mr K. HERNDL

JOINED BY MM A. WEITZEL, L. LOUCAIDES, I. BÉKÉS, A. PERENI?,

Mrs M. HION

I do not share the majority's view that in the present case the criminal

proceedings instituted against the applicant were concluded within a reasonable

time and that consequently there has been no violation of Article 6 para. 1 of

the Convention.

My reasons for disagreeing with that view are the following.

Objectively speaking the length of the incriminated proceedings is

certainly above the threshold established for the element of "reasonable time"

under Article 6 para. 1. A duration of seven years and two months for criminal

proceedings conducted in two instances is certainly too long and ought to have

been declared a breach of Article 6 para. 1, taking into account the

jurisprudence of the Commission in similar cases. The only mitigating

circumstance I can see is the simple fact that the applicant was not taken into

custody and remained in liberty throughout the proceedings (until he absconded,

being currently "of unknown abode"). It might therefore be argued that there was

no apparent necessity for a particular acceleration of the court proceedings in

this case, including the taking of evidence, and that accordingly it was

preferable to obtain additional elements of evidence on certain historic facts.

I can see no other reason why one waited so long for the opinion of the expert

historian. It is, however, legitimate to raise the question whether it was

indeed necessary and advisable to request such an expert opinion, given the

Supreme Court's existing case law according to which "the existence of gas

chambers in concentration camps and the systematic mass extermination which had

occurred there were facts of common knowledge in regard to which evidence need

not be taken".

It is uncontested (see para. 40) that the main reason for the principal

delay which occurred in the present case, was the fact that it took the expert

historian who had been appointed by the court on 28 January 1987 (i.e. shortly

after preliminary investigations against the applicant had been opened) until 29

April 1992 - more than five years -to present his opinion to the court, and then

only orally.

As the majority rightly point out, delays caused by a court appointed

expert are normally attributable to the State party (see para. 40 and the

jurisprudence of the Court quoted there). Accordingly the State party has to be

held responsible for any breach of the Convention resulting from such delays. In

the present case however, the majority introduce the element of "shared

responsibility" and emphasize that "the responsibility for ensuing avoidable

delays may be shared by the applicant, and is so shared by the applicant in the

present case" (see para. 41 in fine).

This would indeed seem to be a new approach. To throw, within the

framework of criminal proceedings, on the applicant the responsibility for the

consequences of procedural requests made by the defence, or to make the

applicant share such responsibility, would in my view run counter to basic

assumptions underlying Article 6. As the Court has stated in the Eckle case, in

criminal matters Article 6 does not require applicants to actively co-operate

with the judicial authorities. No reproach can be levelled against such

applicants for having made full use of the remedies available under the domestic

law (Eur. Court HR, Eckle v. Germany judgment of 15 July 1982, Series A no. 51,

p. 36, para. 82).

Inasmuch as the conduct of the applicant has to be taken into account, it

is difficult to see by what means he did contribute to extending the length of

the actual proceedings. It does not appear from the file that it was the

applicant or the defence which are at the origin of the Investigating Judge's

decision of 28 January 1997 to appoint Mr G.J., an expert on contemporary

history, to prepare a report "on the existence of gas chambers in concentration

camps under the National Socialist regime and their use for mass extermination".

The applicant made no such request, and in fact the defence rested until one

week before the trial when on 22 April 1992 it came forward with new and rather

exaggerated requests for the taking of additional evidence relating to the same

issue.

The unavoidable conclusion is therefore that the responsibility for the

delay in the submission of the expert's opinion lies with the expert himself and

hence with the State party, as the expert had been appointed by the court. It is

true that the Investigating Judge repeatedly took steps with a view to

extracting the opinion from the expert, and that apparently it was the expert

who stalled although his terms of reference had meanwhile been limited to one

concentration camp only (Auschwitz).

In November 1989, almost three years after his appointment, the expert

even informed the court that he could no longer state when his report would be

ready. At that stage, at the latest, it would have been the duty of the

competent organs of the State party to take some decisive action. Again, all

this has to be seen against the background of the Supreme Court's jurisprudence,

that the contested facts were facts of common knowledge. To attempt, in this

context, to justify the expert's five year delay by pointing to the complexity

of his task and the fact that "he had to examine numerous documents on this

question which in the course of time had been dispersed over various archives

throughout the world, and in particular documents in archives which had only

recently become accessible", would seem, in fact, rather incongruous.

To sum up: the length of the proceedings in the present case is excessive

in objective terms. The responsibility for the delays rests with the State

party. It is not shared, and as a matter of principle cannot be shared (except

marginally) by the applicant whose defence was entitled to put forward requests

for the taking of evidence, but in fact did so only on 22 April 1992 and not

earlier.

Finally, if one so wishes, one could contrast the conclusion at which the

majority arrived in the present case with the conclusion of the Commission in

the case of E.L. against Austria (application No. 23019/93). There the

Commission unanimously considered that the length of the proceedings (which

started in September 1988 and which had not been terminated by the end of 1996)

did indeed violate Article 6 para. 1. In the latter case however the applicant

E.L. had submitted, in his defence, about 300 expert opinions and about 12.500

pages of requests for the taking of evidence (including motions that

necessitated the dispatch of letters rogatory to judicial authorities in foreign

countries such as the U.S.A and the then U.S.S.R.), had continuously challenged

for bias judges and prosecutors and had appealed against almost every procedural

decision of the court. Nevertheless the Commission - and rightly so - gave less

weight to the applicant's conduct than to the duty of the State authorities to

respect Article 6, and consequently held that the "reasonable time" had been

exceeded. Should the Commission not have come to a similar conclusion in the

present case?