CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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   The applicant had allegedly withdrawn approximately 8 million AS from a bank account in Zurich/Switzerland appertaining to her nephew, Mr.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)