CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 juillet 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. 12445/86                       by G.                       against Austria             The European Commission of Human Rights sitting in private on 10 July 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   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 7 July 1986 by G. against Austria and registered on 10 October 1986 under file No. 12445/86;           Having regard to:        -   the observations submitted by the respondent Government on         1 September 1988 and the observations in reply submitted         by the applicant on 18 October 1988;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case as submitted by the parties may be summarised as follows:           The applicant, an Austrian citizen born in 1937, is a businessman resident in Vienna.   Before the Commission he is represented by Dr. K. Bernhauser, a lawyer practising in Vienna.           On 22 April 1981 bankruptcy proceedings were instituted in respect of the applicant's firm.   On 13 May 1981 the bankruptcy court concerned filed a report (Anzeige) against the applicant on the grounds of a suspicion of fraud and negligent bankruptcy.           On 21 May 1981 the applicant was interrogated as a suspect by the Horn Police Constabulary (Gendarmeriepostenkommando).           On 30 May 1981 the Horn Police Constabulary notified the Horn District Court (Bezirksgericht) that the applicant was suspected of having embezzled.           On 17 June 1981 the Krems Public Prosecutor's Office applied for the institution of preliminary investigations against the applicant who was suspected of having committed, inter alia, the offences of serious fraud and embezzlement.   The file was then transmitted to the investigating judge at the Krems Regional Court (Kreisgericht).           On 19 October 1981 the Regional Police Authority (Landesgen- darmeriekommando) of Lower Austria at Krems introduced before the Krems Public Prosecutor's Office charges (Strafanzeige) against the applicant relating to various offences in connection with his insolvency in 1978 and his bankruptcy in 1981.   The Regional Police Authority also submitted an investigation report counting 656 pages.           On 30 November 1981 the Krems Public Prosecutor's Office indicted the applicant before the Krems Regional Court on the grounds of negligent and fraudulent bankruptcy offences, of embezzlement, and of serious professional fraud.   The bill of indictment which numbered altogether 31 pages and listed 22 counts divided the offences into four groups.           Thus, the applicant was accused, first, of having negligently caused, as manager of two of his companies as well as a private person, damages to a number of creditors.   In particular, he had between 1972 and 1980 recklessly and disproportionately brought about his insolvency and from February 1980 until 21 May 1981, in full knowledge of his insolvency and to the detriment of his creditors, entered further debts or paid old debts and not requested in due course the opening of bankruptcy proceedings.           Second, the applicant was accused of having sold, or kept secret, part of his fortune and thus having diminished the payment of his creditors whereby he had caused damages of over 100,000 AS.   Thus, he had sold real estate of his, on which he had a petrol station and a coffee bar, to his wife after certain bankruptcy proceedings had been instituted, though he had paid only part of the purchase price by transferring mortgages on the property.   Moreover, shortly before the institution of the bankruptcy proceedings he had sold a car to a certain Allro car company which, while belonging to the applicant, was actually run by nominees (Strohmänner).   Finally, during the bankruptcy proceedings he had kept secret in respect of his personal fortune the fact that he was the owner of the Allro company.           Third, the applicant was accused as responsible manager of one of his companies of having transferred property, namely five cars and one lorry which had been entrusted to him, to third persons and of having thereby unlawfully enriched himself.   Fourth, the applicant had by unlawful and fraudulent means enriched himself in respect of a further ten cars.           The bill of indictment was received by the investigating judge at the Krems Regional Court on 30 December 1981 and obtained legal force on 29 January 1982.           On 2 November 1983 a hearing was fixed which took place on 23 and 24 November 1983 before the Krems Regional Court.   The applicant mainly pleaded not guilty or did not comment.   The Court also heard altogether 26 witnesses.   Upon application of the applicant's lawyer the Court decided to order the preparation of an expert opinion as to the actual moment when the applicant's companies had become insolvent.   The Court dismissed the further request of the applicant's lawyer also to order the preparation of an expert opinion by a specialist in the assessment of real estate; it considered that the respective questions were either already answered in the file or constituted legal questions which the Court had to resolve.           On 16 December 1983 and 27 January 1984, the Krems Regional Court instructed Messrs. W. and H. to prepare the expert opinion. Messrs. W. and H., however, were not available.           On 1 February 1984 the Regional Court instructed the expert accountant, Mr. N, to prepare an opinion on the reasons and the actual moment of the insolvency of the applicant's company as well as on the date when this insolvency had become apparent.           This opinion was submitted on 24 October 1984.   It contained altogether 82 pages including various tables depicting, inter alia, balance sheets, accounts and the applicant's fortune.   When preparing the opinion Mr. N. constantly kept the Regional Court informed of his progress.           On 12 November 1984 the Krems Regional Court fixed a further hearing for 29 November 1984.   This was cancelled as the applicant was bed-ridden.   Instructed by the Regional Court, Dr. G. submitted on 7 December 1984 a medical opinion according to which the applicant was unable to stand trial (verhandlungsunfähig) until 15 December 1984.           On 19 December 1984 the Public Prosecutor's Office requested the Court again to fix a hearing.           On 20 December 1984 the Krems Regional Court decided to suspend the proceedings in view of a new medical expert opinion according to which the applicant suffered from psychovegetative heart and circulatory disorders.           On 31 January 1985 the Krems Regional Court ordered a further medical opinion from Dr. G. as to the applicant's ability to stand trial.   This was submitted on 13 February 1985.           On 11 March 1985, the Regional Court determined the fees for the expert opinion of Mr. N.   Against this decision the Krems Public Prosecutor's Office filed an appeal whereupon on 9 April 1985 the case-file was transmitted, until 23 May 1985, to the Vienna Court of Appeal (Oberlandesgericht).           Upon the Regional Court's instruction of 9 December 1985, Dr. G. submitted on 20 December 1985 a further medical opinion on the applicant's ability to stand trial.           On 27 December 1985 the Regional Court fixed a hearing for 30 January 1986.   However, on 8 January 1986 the expert Mr. N. informed the Court that he could not attend on that date.   A hearing was then fixed for 13 March 1986.           On 11 March 1986 the Court was informed of the unsuccessful summons of the witness K. As the Public Prosecutor's Office and the applicant's lawyer declared that the presence of the witness was essential, the hearing was postponed until 12 June 1986.           On 2 June 1986 the applicant transmitted to the Regional Court a written submission in which he pleaded guilty in respect of most counts except the second group of offences concerning the diminution of payment of his creditors.   The applicant pointed out that it was therefore now unnecessary to hear further witnesses.   For this reason, and also to save costs, he requested the Court not to hear the expert Mr. N.           The hearing took place on 12 June 1986.   The applicant now pleaded guilty in respect of most offences.   The Court still heard one witness.   The Court then pronounced its judgment.   It convicted the applicant of negligent and fraudulent bankruptcy offences, of embezzlement, and of serious professional fraud.   The applicant was sentenced to two years' imprisonment.   At the hearing the applicant filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung) against the judgment.           The Regional Court's judgment was served on the applicant on 2 March 1987.   Therein, the Regional Court found the applicant guilty on most counts stated in the bill of indictment of 30 November 1981. It acquitted the applicant on three counts of the second group of offences concerning the diminution of payment of his creditors.   The Court, observing that the applicant had been convicted to the extent that he had pleaded guilty, considered this as a mitigating circumstance.   As aggravating circumstances it considered the seriousness of the offences and the fact that a number of them had coincided.           On 1 September 1987 the Supreme Court (Oberster Gerichtshof) partly upheld the applicant's plea of nullity.   It set aside the finding of guilt on three counts and in this respect referred the case back to the Krems Regional Court for a new decision.   In respect of the remaining offences the Supreme Court itself adjudged the case and sentenced the applicant to 20 months' imprisonment.           Meanwhile the applicant filed a petition for pardon.   The case-file was then transmitted to the Federal Ministry of Justice where it remained from 13 November 1987 until 28 January 1988.   The petition for pardon was eventually dismissed.           To the extent that the Supreme Court referred the case back to the Krems Regional Court, the Krems Public Prosecutor's Office withdrew the remaining charges on 12 February 1988 on the ground that, even if the applicant was convicted in this respect, no supplementary sentence was to be expected.   On the basis thereof the Krems Regional Court terminated the proceedings on 17 February 1988.   COMPLAINTS           The applicant complains under Article 6 para. 1 of the Convention of the length of the proceedings.   While he was indicted on 30 November 1981 of offences which reached back to 1972, the first hearing took place only on 23 and 24 November 1983 and the second hearing only on 12 June 1986.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 7 July 1986 and registered on 10 October 1986.           On 6 October 1987 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits pursuant to Rule 42 para. 2 (b) of its Rules of Procedure.           On 15 April 1988 the Commission decided, upon the request of the respondent Government, to extend the time-limit for their written observations until 1 September 1988 in view of the pending proceedings concerning the applicant's petition for pardon.           The respondent Government's observations were submitted on 1 September 1988 and the reply thereto by the applicant on 18 October 1988.   THE LAW           The applicant complains of the length of the criminal proceedings against him.   He relies on Article 6 para. 1 (Art. 6-1) of the Convention which provides, insofar as it is relevant:           "In the determination ... of any criminal charge against him         everyone is entitled to a ... hearing within a reasonable         time...".           The Government submit that the proceedings were unusually complex.   For instance, offences had to be investigated which were committed between 1972 and 1981.   Moreover, the applicant himself contributed to the length of the proceedings in that he first denied the charges and gave misleading explanations.   As regards the conduct of the authorities, the Government have submitted a time-chart on the proceedings (included in THE FACTS below).   They contend that the preliminary investigations instituted against the applicant were completed very speedily, which in turn however led to a more extended trial.   Subsequently, the Krems Regional Court had to prepare the hearing scheduled for 2 November 1983 with particular care.   For instance, a total of 29 witnesses had to be summoned.           The Commission considers that the applicant's complaints under Article 6 para. 1 (Art. 6-1) of the Convention raise 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               President of the Commission            (H.C. KRÜGER)                             (C.A. NØRGAARD)