CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1991

.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. 15883/89                         by Friedrich Wilhelm KREMZOW                         against Austria               The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1991, the following members being present:                MM.   S. TRECHSEL, President of the Second Chamber                   G. SPERDUTI                   G. JÖRUNDSSON                   A. WEITZEL                   H. G. SCHERMERS              Mrs.   G. H. THUNE              Mr.   F. MARTINEZ              Mrs.   J. LIDDY              MM.   J.-C. GEUS                   M.P. PELLONPÄÄ                Mr.   K. ROGGE, Secretary to the Second Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 22 November 1989 by Friedrich Wilhelm KREMZOW against Austria and registered on 11 December 1989 under file No. 13715/88;           Having regard to the report provided for in Rule 47 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 1938, is an Austrian national.   At present he is serving a life sentence for murder in the prison of Vienna-Mittersteig.   In the present proceedings before the Commission, the applicant has been represented by Mr.   W.L. Weh, a lawyer practising in Bregenz, since 6 November 1990.           The applicant has lodged further applications with the Commission, which concern criminal proceedings leading to his conviction of murder (No. 12350/86) and the length of civil proceedings (No. 13715/88) and are still pending before the Commission.           In January 1983 the applicant reported to the Tax Office (Finanzamt) for the 1st District of Vienna about tax evasion committed in connection with his professional activities for a lawyer.           On 17 February 1983 the Tax Office, having heard the applicant on 9 February 1983 on his professional activities, instituted criminal proceedings under the Code of Financial Offences (Finanzstrafgesetz) against the applicant on the suspicion of having committed tax evasion in connection with his failure to submit tax declarations for the years 1977-81.           On 1 March 1983 the applicant was heard by the Tax Office on the charges against him.   After further investigations (requests for information from banks, hearing of witnesses etc.) he was again heard on 13 and 22 June 1983.           On 3 October 1983 the tax assessments concerning the period from 1978 until 1982 were issued against the applicant.   The applicant's appeals in the tax proceedings were dismissed in August 1985 and June 1987, respectively.           On 9 March 1984 the Vienna Regional Directorate of Finance (Finanzlandesdirektion), upon the applicant's complaint of 4 March 1984, ordered the Tax Office to report his case without delay to the Public Prosecutor's Office (Staatsanwaltschaft).   The Directorate referred in this respect to the amount of taxes fixed in the assessments of October 1983.           On 11 April 1984 the Tax Office reported the case, which it considered clearly within the competence of the courts, to the Vienna Public Prosecutor's Office, where it was received on 18 April 1984.           On 31 January 1985 the Senior Public Prosecutor's Office (Oberstaatsanwaltschaft) dismissed the applicant's hierarchical complaint (Aufsichtsbeschwerde) about the delay of the proceedings at the Public Prosecutor's Office.           On 6 September 1985 the Vienna Public Prosecutor's Office requested the Investigating Judge at the Vienna Regional Court (Landesgericht) to carry out preliminary investigations (gerichtliche Vorerhebungen), in particular to hear the applicant, to produce several files concerning other proceedings and to issue a search warrant as regards a safe.           On 25 September 1985 the Investigating Judge ordered that the applicant's statements in the proceedings before the Tax Office and his criminal records be produced.           On 28 February 1986 the Review Chamber (Ratskammer) at the Vienna Regional Court dismissed the applicant's appeal (Beschwerde) of January 1986 against the above decision of the Investigating Judge.           Plans to hear the applicant on 27 May and 11 June 1986 were cancelled by the Investigating Judge on the grounds that he had to fulfil other official obligations, or that the applicant could not brought from prison in court.           On 21 July 1986 the Vienna Regional Court dismissed the applicant's request of 3 July 1986 to discontinue the proceedings against him in view of the sentence to life imprisonment imposed by the Korneuburg Regional Court on 18 December 1984.           On 28 October 1986 the Investigating Judge informed the applicant that a further hearing fixed for 4 November 1986 was cancelled due to his workload.           On 6 November 1986 the applicant informed the Court that he would make his submissions at the trial, and refused to make any statements in the investigation proceedings.   At the same time he revoked his earlier submissions made before the Tax Office.   Thereupon the Investigating Judge forwarded the files to the Public Prosecutor's Office.           On 5 December 1986 the Vienna Public Prosecutor's Office preferred an indictment against the applicant, charging him with tax evasion under S. 33 of the Code of Financial Offences.   The applicant was charged with having evaded tax in the period of 1979 to 1982 of a total amount of AS 678,143.   The indictment was served upon the applicant on 5 January 1987.           On 20 January 1987 the bill of indictment was transmitted to the Presiding Judge of the Vienna Regional Court, sitting as court with lay assessors (Schöffengericht).           On 26 January 1987 the Regional Court fixed 4 March 1987 as date for the trial, and ordered that the files concerning the criminal proceedings before the Korneuburg Regional Court concerning murder be produced.   It also summoned the applicant.           On 18 February 1987 the Committee (Ausschuß) of the Lawyers' Association (Rechtsanwaltskammer) for Vienna, Lower Austria and Burgenland, upon instruction by the Vienna Regional Court, appointed an official defence counsel for the applicant.           At the trial on 4 March 1987 the Regional Court dismissed the applicant's complaints about the composition of the Court as regards the lay assessors, and his request to release his official defence counsel in order to allow him to defend himself in person.   His request that psychiatric expert evidence on his criminal responsibility be taken, and that he be entitled to propose three experts, as well as that files concerning two other proceedings be produced, were granted.   The trial was postponed sine die.           On 16 March 1987 the applicant appealed against the appointment of the official defence counsel.           On 6 April 1987 the applicant required an extension of the time-limit to propose the psychiatric experts.           On 13 May 1987 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal of 16 March 1987 concerning the appointment of counsel.           On 1 June 1987, following a reminder by the Regional Court, the applicant proposed three experts.           On 25 June 1987 the Regional Court informed the applicant that the expert S., one of the three experts named by him, was likely to be appointed.           On 14 July 1987 the Regional Court refused the applicant's request for a further time-limit to specify further evidence in connection with the expert opinion.           On 21 August 1987 the applicant made further submissions in his defence, requested that a new date for the trial be fixed and various other files be produced.   The latter was ordered by the Court on 25 August.           On 21 September and 13 October 1987 the applicant again requested the Regional Court to fix a new date for the trial.           On 16 October 1987 the Regional Court appointed the psychiatric expert S. and instructed him to deliver, within three months, an expert opinion on the applicant's criminal responsibility and capacity to participate in the proceedings.   The files, including those produced upon the applicant's requests, were submitted to the expert.           On 28 October 1987 the applicant appealed against the Regional Court's decision of 16 October 1987, raising objections to the questions submitted to the expert.           On 29 October 1987 the Regional Court, in view of the appeal, requested the expert to return the files.   The files were received on 14 December 1987.           On 16 December 1987 the Austrian Administrative Court (Verwaltungsgerichtshof), upon the applicant's appeal against the appointment of counsel by the Lawyers' Association, quashed the decision.   The Administrative Court found that it had been taken by an incompetent authority, namely the plenary Committee instead of a Department of the Committee.           On 17 December 1987 the applicant lodged a hierarchical complaint with the Court of Appeal about the conduct of the proceedings.           On 29 December 1987 the Vienna Court of Appeal declared the applicant's appeal against the decision of 16 October 1987 inadmissible.   It also found that thus no supervisory measures were necessary.   The decision was served upon the applicant on 4 January 1988.           On 13 January 1988 the files were again sent to the expert S.           On 14 January 1988 the applicant again lodged a hierarchical complaint with the Vienna Court of Appeal.           On 1 February 1988 the Regional Court, therefore, again requested the expert S. to return the files.           On 11 March 1988 the Regional Court reminded the expert to return the files, which were received back on 15 March 1988.           On 21 April 1988 the Vienna Court of Appeal, having regard to reports of the President of the Regional Court and the Presiding Judge, respectively, found that there was no reason to take supervisory measures.   The decision was received by the applicant on 27 April 1988.           On 28 April 1988 the files were sent to the expert for the third time.           Until December 1988 the applicant repeatedly urged the fixing of a trial.           On 7 December 1988 the Regional Court received an interim report of the expert S. who requested an extension of the time-limit to submit his opinion on the ground of the particular circumstances of the applicant's case.   The request was granted and the applicant informed accordingly.           On 20 December 1988 the Regional Court requested the expert S. to return the tax files required by the Tax Office.   On 10 February 1989 the Regional Court reminded the expert to return the tax files.           On 23 January 1989 the applicant again requested the fixing of a date for the trial, and also asked for a copy of the expert opinion.           On 14 February 1989 the applicant asked for a meeting with the Presiding Judge and requested permission to consult all files.   On 24 February 1989 he was informed that the files were still with the expert.           On 21 March, 26 April and 26 May 1989 the Regional Court requested the expert S. to deliver his opinion.           On 12 April 1989 the applicant, who had in the meantime repeatedly requested the fixing of a trial, lodged a hierchical complaint with the Vienna Court of Appeal concerning the delay in the criminal proceedings.         On 30 June 1989 the expert S. delivered his opinion according to which the applicant did not suffer from any mental disorder excluding his criminal responsibility.   The expert also returned all files.           On 4 July 1989 the applicant applied to the Federal Ministry of Justice (Bundesministerium der Justiz) suggesting that it should annul the pending proceedings as a measure of grace.           On 12 July 1989 the Court of Appeal refused supervisory measures on the ground that the expert had meanwhile submitted his opinion.   The Court of Appeal also noted that the President of the Vienna Regional Court was informed about the delays which had occured so far.   It assumed that further procedural steps could thus be expected as soon as possible.   The decision was served upon the applicant's counsel on 13 July 1989, the applicant himself received it on 18 July 1989.           On 30 July 1989 the expert opinion was sent to the applicant's defence counsel.           On 1 August 1989 the applicant again urged the Regional Court to fix the trial date.   On 14 August 1989 he complained again with the Court of Appeal as regards the fixing of a date for trial.           On 17 August 1989 the Vienna Public Prosecutor's Office informed the Regional Court inter alia about proceedings pending with regard to the applicant's request of 4 July 1989, namely to annul the proceedings.           On 4 September 1989 the Regional Court reported to the Court of Appeal that, having regard to the pending annulment proceedings, it had not considered the fixing of a date for trial appropriate.           On 10 October 1989 the Federal Ministry of Justice dismissed the applicant's request to annul the proceedings concerning tax evasion.   The applicant was informed on 25 October 1989.           On 10 November 1989 the Vienna Court of Appeal, upon the applicant's complaint of 14 August 1989, instructed the Regional Court to decide within four weeks upon the applicant's request of 13 February 1989 to consult the files.   The remaining complaints were dismissed.   The decision was served upon the applicant on 17 November 1989.           On 11 December 1989 the Vienna Public Prosecutor's Office informed the Regional Court that on 10 October 1988 the Federal Ministry of Justice had refused to annul the proceedings.           On 12 December 1989 the Regional Court dismissed the applicant's request to consult the file.   The applicant appealed on 21 December 1989.           On 2 January 1990 the applicant, in accordance with S. 91 of the Organisation of Courts Act (Gerichtsorganisationsgesetz), which had entered into force on 1 January 1990, requested the Court of Appeal to fix a time-limit by which the trial should be held by the Regional Court.         On 23 January 1990 the Regional Court granted the applicant the right to consult the files and sent them to Mittersteig Prison.           On 8 February 1990 the applicant challenged the Presiding Judge O. and the Judge R. at the Vienna Court of Appeal for bias, and lodged a disciplinary complaint against his official defence counsel.           On 19 February 1990 the files were returned to the Regional Court.           On 20 February 1990 the applicant requested the Regional Court to discontinue the proceedings.   The Court thereupon sent the files to the Public Prosecutor's Office and the Attorney General (Generalprokurator), respectively.   On 29 March 1990 the Regional Court was informed of their decision that prosecution should be continued.           On 20 April 1990 the Regional Court fixed 4 July 1990 as date for the trial.           On 1 June 1990 an official defence counsel was appointed. On 13 June 1990 the Review Chamber dismissed the applicant's complaint about the appointment of counsel.           At the same date, the President of the Regional Court dismissed the applicant's request of 8 May 1990 in which he had claimed information relating to the composition of the Regional Court in respect of the lay assessors.           On 15 June 1990 the Regional Court forwarded the applicant's request of 3 January 1990 concerning the fixing of a trial to the Court of Appeal.   Comments and the files were included.           On 28 June 1990 the Court of Appeal dismissed the applicant's request under S. 91 of the Organisation of Courts Act as well as further hierarchical complaints of 11 June 1990.           On 4 July 1990 the trial was postponed sine die in order to appoint another defence counsel for the applicant.   Previous counsel had been called as witness for the defence.   Various requests by the applicant, inter alia concerning the appointment of the lay assessors, were dismissed.           On 28 August 1990 the Vienna Court of Appeal, upon the applicant's appeal against the refusal of information about the composition of the Regional Court, quashed the decision of the President of 13 June 1990 and sent the matter back for a new decision.           From 5 July until 10 September 1990 the files concerning the earlier criminal proceedings before the Korneuburg Regional Court, which led to the applicant's conviction for murder, were with the Federal Ministry of Justice and the Federal Chancellery (Bundes- kanzleramt) in the context of the applicant's parallel proceedings before the Commission (Application No. 12350/86).           On 25 September 1990 the applicant again requested the Vienna Court of Appeal under S. 91 of the Organisation of Courts Act to set the Regional Court a time-limit for a new trial.   He sent his submissions both directly to the Court of Appeal as well as via the Regional Court.   The Vienna Court of Appeal dismissed the above request on 30 October 1990.           According to a file note of 5 November 1990 the Regional Court dropped its plan to hold trial on 3 and 5 December 1990 on the ground that the criminal files concerning the proceedings for murder had to be returned to the Korneuburg Regional Court.           Furthermore, on 5 November 1990 the Regional Court dismissed the applicant's request of 31 July 1990 to have, at the next trial, particularly skilled shorthand writers.   It also forwarded the applicant's request of 25 September 1990 concerning the fixing of a time-limit under S. 91 of the Organisation of Courts Act to the Vienna Court of Appeal.   The Regional Court received the Court of Appeal's decision on that matter, which had been taken on 30 October (see above), on 6 November 1990.           On 13 November 1990 the Vienna Court of Appeal requested the Regional Court to comment upon the late transmission of the applicant's request of 25 September 1990 and upon the envisaged date for a trial.           On 21 November 1990 the applicant requested the Attorney General to lodge a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes).           On 7 December 1990 the Court of Appeal instructed the Regional Court to fix, within six weeks, a date for the trial.           From 11 December 1990 until 3 January 1991 the files were forwarded to the Federal Ministry of Justice in the context of the present proceedings before the Commission.           The new trial was fixed for 3 and 5 April 1991.     COMPLAINTS           The applicant complains that the criminal charge against him under the Code of Financial Offences has not been terminated within a reasonable time, as required by Article 6 para. 1 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 22 November and registered on 11 December 1989.           On 10 October 1990 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.         The Government's observations were submitted on 28 January 1991, and the applicant's submissions in reply on 7 March 1991.           On 27 May 1991 the Commission referred the application to its Second Chamber.     THE LAW           The applicant complains about the length of criminal proceedings against him concerning offences under the Code of Financial Offences.   He relies on Article 6 para. 1 (Art. 6-1) of the Convention which, insofar as relevant, provides as follows:   "In the determination 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 Government submit that the starting point for the relevant period to be considered under this provision was at the earliest when the Tax Office reported the applicant's case to the Public Prosecutor's Office, and subsequently preliminary investigations were conducted by the Vienna Regional Court.           Furthermore, the Government consider that the length of the proceedings, in the circumstances of the present case can still be considered as reasonable.   They submit that delays of the proceedings were due to the applicant's conduct, in particular his numerous appeals, complaints and resort to other remedies.   Some of his requests, he could have submitted earlier in writing, e.g. his request at the trial to take expert evidence as regards his criminal responsibility.   The Public Prosecutor's Office and the Courts cannot be held responsible for the legth of the proceedings, all decisions and measures were taken immediately and without delay.           The Commission finds that the applicant's complaint about the length of the criminal proceedings against him raises questions which require an examination of the merits.   The application is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no other ground for declaring it inadmissible has been established.             For these reasons, the Commission, unanimously,             DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.     Secretary to the Second Chamber         President of the Second Chamber                   (K. ROGGE)                             (S. TRECHSEL)