CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 mai 1989

.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. 12896/87                       by Franz SCHADEN                       against Austria             The European Commission of Human Rights sitting in private on 9 May 1989, the following members being present:                 MM. J.A. FROWEIN, Acting President                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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 20 January 1987 by Franz Schaden against Austria and registered on 28 April 1987 under file No. 12896/87;           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 of the case, as they have been submitted by the parties, may be summarised as follows.           The applicant, born in 1949, is a German national and resident at Retz, Austria.   He is an oenologist and businessman by profession. When lodging the application he was detained at the Korneuburg Prison. Before the Commission he is represented by Mr.   K. Bernhauser, a lawyer practising in Vienna.           The applicant was manager of two limited liability companies trading in wine and spirits.   One of them was owned by the applicant's father, the other was jointly owned by the applicant and his father. In June 1977 the Korneuburg Regional Court (Kreisgericht) instituted preliminary investigations (Voruntersuchung) against the applicant's father on the suspicion of fraud and bankruptcy offences.   In July and August 1977 bankruptcy proceedings were opened against the two companies.   On 12 September 1977 the Korneuburg Regional Court joined criminal proceedings against the applicant, his father and a further person on the suspicion of conversion of goods in official custody (Verstrickungsbruch), which had been conducted at the Retz District Court (Bezirksgericht), with the investigation proceedings against the applicant's father concerning fraud and bankruptcy offences.           On 22 September 1977 the Retz City Police Office (Gendarmerie- postenkommando) requested the Korneuburg Regional Court to institute criminal proceedings against the applicant on the suspicion of having committed fraud as manager of the two above companies.   The Regional Court joined the two investigation proceedings against the applicant.           In October 1977 a company joined the proceedings as a private party (Privatbeteiligter).           On 20 December 1977, following investigations by the Lower Austria Police Department (Landesgendarmeriekommando), the Korneuburg Regional Court summoned the applicant, who could then not be examined on account of illness.   He was heard on 5 January 1978.           On 12 January 1978 the applicant's defence counsel presented himself to the Regional Court.           On 26 January 1978 the Korneuburg Regional Court, having received information about various civil enforcement proceedings against the applicant and the other suspects and having heard the two witnesses C and B, submitted the files to the Korneuburg Public Prosecutor's Office (Staatsanwaltschaft) for further action.           On 27 January 1978 the Prosecutor's Office returned the files.   It requested the Korneuburg Regional Court to investigate further, in particular against the applicant, to conduct appropriate inquiries as to the bankruptcy offences and to order an expert opinion as to the applicant's and his father's financial situation at the beginning of their insolvency.           On 3 February 1978 the Korneuburg Regional Court questioned the applicant and other suspects a second time.   On 17 February 1978 it submitted the files to the Lower Austria Police Department requesting them to supplement their inquiries.         On 28 August 1978 the Korneuburg Regional Court received the further findings of the Police Department.   On 29 August 1978 the Court appointed the commercial expert P as auditor and instructed him to prepare an opinion on the questions raised by the Public Prosecutor's Office, namely the financial situation of the applicant and his father at the beginning of their insolvency and knowledge thereof.   The Court fixed a time-limit of six weeks.           On 30 October 1978 the expert P informed the Korneuburg Regional Court that the time-limit could not be kept for an opinion such as in the present case.   His opinion could be expected in December 1978; otherwise he would submit a further intermediate report.   On 19 December 1978 P informed the Court that the applicant had not appeared at a final discussion on 14 December 1987 on account of a death.   His opinion would be delivered the second week of January 1979.           On 17 January 1979 the Korneuburg Regional Court, having received the expert opinion comprising 89 pages and annexes, closed the preliminary investigations and submitted the files to the Korneuburg Public Prosecutor's Office for further action.   On 29 January 1979 the files were returned to the Regional Court; the Prosecutor's Office requested completion of the investigations. The Regional Court sent the files to the Lower Austria Police Department on 30 January 1978 and requested that the further inquiries be completed with priority.           On 21 February 1980 the Korneuburg Regional Court received the Police Department's report.   It sent the files to the Korneuburg Public Prosecutor's Office for further action.           On 28 February 1980 the Korneuburg Public Prosecutor's Office preferred the indictment (Anklageerhebung) against the applicant on charges of fraud, conversion of goods in official custody, retention of social security contributions (§114 of the Social Security Act - ASVG) and fraudulent bankruptcy (fahrlässige Krida).   The criminal proceedings against the other suspects were discontinued. Furthermore, the Prosecutor's Office requested supplementary inquiries to be conducted in the intermediate proceedings (Zwischenverfahren) before the opening of the main proceedings.           On 13 March 1980 the Korneuburg Regional Court sent part of the files to the Linz District Court for examination of the witness M. On 20 March the Regional Court heard the two further witnesses N and F as requested by the Public Prosecutor's Office.   One of the witnesses was heard again on 27 March 1980.   The Linz District Court heard the witness M on 16 April 1980, and submitted its report and the files to the Regional Court on 17 April 1980.           On 6 May 1980 the Presiding Judge at the Korneuburg Regional Court sent the files to the Public Prosecutor's Office for action on new requests to prosecute the applicant.   On 8 May 1980 the files were returned.   The Prosecutor's Office reserved the right to extend the indictment to charges based on the statements of the witnesses M and F.   These witnesses should be summoned for the trial.           On 2 September 1980 the Korneuburg Regional Court fixed 13 November 1980 as the date for the trial.   On 30 September 1980 the files were sent to the Lower Austria Police Department to establish the whereabouts of a witness H.   The Police Department's report was received on 15 October 1980.           Furthermore, in October 1980, three persons joined the criminal proceedings as private parties.           On 13 November 1980 the Regional Court opened the trial, which was postponed to hear the expert on his opinion.   On 14 November 1980 the Public Prosecutor's Office ordered supplementary inquiries as regards the testimony of a particular witness.   The results were received by the Regional Court on 24 November 1980.           On 29 January 1981 the Korneuburg Regional Court resumed the trial. It convicted the applicant of fraud on six counts, fraudulent bankruptcy, conversion of goods in official custody and retention of social security contributions, and sentenced him to two years' imprisonment.   The applicant was acquitted of the charge of fraud on seven further counts.   The Court having heard several witnesses and the expert P found that in 1974 to 1975 the applicant had negligently caused the insolvency of the two above- mentioned companies.   It considered that he had not requested the opening of bankruptcy proceedings in the beginning of 1976 when he already knew about the insolvency of both companies.   Furthermore he had entered into legal transactions in 1976 pretending still to be a solvent businessman. The judgment, comprising 6 pages, was served upon the applicant on 1 June 1981.           On 16 June 1981 the applicant, having previously announced his plea of nullity (Nichtigkeitsbeschwerde) and appeal (Berufung) against sentence, filed the reasons for these remedies.           On 23 July 1981 the Austrian Supreme Court (Oberster Gerichtshof), upon the applicant's plea of nullity, quashed the judgment with regard to the conviction and sentence.   The case was to that extent sent back for a new trial.   The Supreme Court upheld the remainder of the judgment of 29 January 1981.   It found that the Regional Court had insufficiently taken evidence as regards the question whether the applicant was at the relevant time still convinced that he could restore the companies' solvency.           On 12 August 1981 the files were returned to the Korneuburg Regional Court.   On 17 August 1981 Judge F, competent for the second trial under the Court's rules on assignment of cases, informed the President of the Korneubeurg Regional Court that he had acted as Investigating Judge in the first set of proceedings.   The case was assigned to Judge R.           On 26 August 1981 the Korneuburg Regional Court sent the files to its Investigating Judge in order to question the applicant as regards the mental elements of the offences concerned, and to order subsequently a supplementary expert opinion.   The applicant did not comply with a first summons to be heard on 24 September 1981.   On 9 October 1981 he requested a time-limit of six to eight weeks to submit documents explaining his business concept for the companies.   On 27 October 1981 the applicant was summoned for 16 November 1988.   On that date he was questioned, he filed some documents and stated that he intended to submit further documents before 15 December 1981.           On 27 November 1981 the Korneuburg Public Prosecutor's Office informed the Regional Court that the indictment might be extended to further offences under S. 114 of the Social Security Act.           On 30 November 1981 the applicant was summoned for 15 December 1981.   One day earlier his defence counsel informed the Court that the applicant was travelling abroad, and they agreed upon 21 December 1981 as the date for the applicant's questioning.   The applicant did not appear on account of illness.   On 18 January 1982 the Retz District Court, upon a request for mutual assistance, questioned the applicant. The report and files were submitted on 21 January 1982.   On 12 February 1981 the Korneuburg Regional Court heard the witness B.           On 18 February 1982 the Korneuburg Regional Court ordered the expert P to supplement his written opinion.   The expert informed the Court that he had first to comply with urgent orders from other courts.   In an intermediate report dated 3 August 1982 the expert confirmed that he could finish his supplementary opinion only at the end of September 1982 after a final discussion with the applicant. The opinion arrived at the Regional Court on 6 October 1982.           On 15 October 1982 the files were again sent to the Investigating Judge in order to complete the investigations according to the Court's decision of 26 August 1981, in particular to hear further witnesses.           On 29 October 1982 six witnesses were heard, two further witnesses were summoned for 8 November 1982.   One of the witnesses did not appear on account of illness, he was heard on 12 January 1983.   In the meantime, on 7 December 1982, the Linz District Court, upon request for mutual assistance, heard another witness.           On 21 January 1983 the files were again sent to the Korneuburg Regional Court and, three days later, transferred to Judge F, competent for the case under the Court's new rules.   On 24 January 1983 F informed the President of the Korneuburg Regional Court that, according to the decision of 17 August 1981, he could not deal with the case.   On 3 February 1983 the case was again assigned to Judge R.           From 16 February until 7 March 1983 the files were sent to the Laa District Court upon the request of the applicant's counsel.           On 21 June 1983 the files were again sent to the Investigating Judge.   The Korneuburg Regional Court, referring to the earlier decisions of 26 August 1981 and 15 October 1982, requested to take further evidence, in particular to hear witnesses upon particular aspects of the charges.           On 26 July 1983 the Investigating Judge at the Korneuburg District Court sent rogatory letters to the Bad Kreuznach District Court (Amtsgericht), in the Federal Republic of Germany, asking to hear as witness a representative of a wine firm at Bingen who was informed about a particular business transaction.           On 23 October 1983 the Bad Kreuznach District Court informed the Korneuburg Regional Court that the rogatory letters could not be complied with on the ground that Ma, the responsible buying agent at that time, had moved to Switzerland.           On 9 November 1983 rogatory letters asking to hear two other employees at Bingen were sent to the Bingen District Court, which forwarded them to the competent Bad Kreuznach District Court on 6 December 1983.   On 6 February 1984 the Bad Kreuznach District Court returned the rogatory letters.   It annexed a letter of the Bingen wine firm explaining that the two employees concerned had not been responsible for the business transaction in question and stating the address of Ma, the previous buying agent.         On 14 February 1984 the Swiss court competent for Wintherthur received rogatory letters and was asked to hear Ma as witness.   The Winterthur District Attorney's Office (Bezirksanwaltschaft), having heard Ma, submitted its report on 22 March 1984.           On 27 March 1984 the Korneuburg Regional Court sent rogatory letters to the Bad Kreuznach District Court and asked to hear a witness who had been mentioned by the witness Ma.   The rogatory proceedings were closed on 27 June 1984.           On 26 July 1984 the applicant, who had not complied with a summons two weeks earlier, was heard by the Retz District Court, in proceedings of mutual assistance, in respect of the particular business transaction.           On 30 July 1984 the Korneuburg Regional Court sent rogatory letters to the Bad Kreuznach District Court and requested the hearing of a further witness who had been named by the applicant.   On 10 September 1984 the Bad Kreuznach District Court informed the Korneuburg Regional Court that it had forwarded the rogatory letters to the competent Rüdesheim District Court.   The Korneuburg Regional Court heard a further witness in September 1984.   On 7 November 1984 the Rüdesheim District Court submitted its report.           On 10 June 1985 the Presiding Judge of the Korneuburg Regional Court fixed 9 and 10 July 1983 as dates for the trial.           On 31 July 1985 the applicant was taken into detention on remand.           On 9 and 10 July the Korneuberg Regional Court conducted the second trial which was continued on 13 September 1985.   It convicted the applicant of fraud on five counts and bankruptcy offences by which he had caused a total damage of more than 15 million AS.   He was sentenced to one and a half years' imprisonment.   The period of his detention on remand was to be deducted from his sentence.   He was acquitted of the charge of fraud on one count.           In its judgment, the Court found in particular that, having regard to the amount of his debts, the lack of liquid funds and the failure of an envisaged important business transaction, the applicant should have known by the end of 1975 that he could not restore the solvency of the two companies.   He nevertheless continued his transactions.   He raised further loans without having any concept for his business, broke accounting rules and interfered with executions. The Court proceeded from the evidence obtained from the files of the bankruptcy proceedings, the files of numerous executions, the testimony of witnesses and the opinion of the expert P.           The written version of the judgment of 48 pages was completed on 31 January 1986 and served upon the applicant's defence counsel on 19 February 1986.           On 6 March 1986 the applicant filed the reasons for a plea of nullity and an appeal against the judgment of 13 September 1986.   He submitted inter alia that the Regional Court had failed to consider as mitigating circumstances the lapse of time since he committed the offences in question.           On 9 September 1986 the Supreme Court dismissed the applicant's plea of nullity and appeal.         The applicant started to serve his sentence on 12 September 1986.   The Supreme Court's written decision was served upon him on 7 November 1986.     COMPLAINTS           The applicant complains under Article 6 para. 1 of the Convention of the length of the criminal proceedings against him.   He considers in particular that the second trial before the Korneuburg Regional Court could have taken place earlier.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 20 January 1987 and registered on 28 April 1987.           On 5 May 1988 the Commission decided that, in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, notice should be given to the respondent Government of the application and that they be invited to submit written observations on the admissibility and merits of the application before 22 July 1988.           The Government's observations were submitted on 25 July 1988. The applicant's observations in reply were submitted on 20 October 1988.     THE LAW           The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the criminal proceedings against him were not terminated within a reasonable time.           Article 6 para. 1 (Art. 6-1), first sentence, states:           "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."           The respondent Govenment contend that criminal proceedings concerning bankruptcy and related offences such as in the present case are of a complex nature.   Evidence had to be taken from an expert opinion and witnesses had to be heard in rogatory proceedings. Furthermore, the Government submit the applicant did not insist upon fixing the second trial at an earlier date, and repeatedly delayed the proceedings in that he did not comply with summonses.   The length of the proceedings could not be attributed to the Austrian authorities.   The Government, referring to the different stages of the proceedings, submit that no unreasonable delays occurred and that the course of action taken by the Korneuburg Regional Court did not cause any unreasonable delays.         The Commission finds that the applicant's complaint under Article 6 para. 1 (Art. 6-1) of the Convention about the length of the criminal proceedings against him, which lasted more than nine years, raises complex issues of fact and law which can only be resolved by an examination of the merits.   The application cannot, therefore, be declared manifestly ill-founded.   No other grounds for inadmissibility have been established.             For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE         without prejudging the merits of the case       Secretary to the Commission       Acting President of the Commission             (H. C. KRÜGER)                        (J. A. FROWEIN)