CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 janvier 1992

.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. 16131/90 by Gottfried INSAM against Austria   __________     The European Commission of Human Rights (Second Chamber), sitting in private on 13 January 1992, the following members being present:     MM.S. TRECHSEL, President of the Second Chamber G. JÖRUNDSSON A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS Mrs.G. H. THUNE MM.F. MARTINEZ L. LOUCAIDES J.-C. GEUS   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 19 January 1990 by Gottfried INSAM against Austria and registered on 2 February 1990 under file No. 16131/90;   Having regard to the observations submitted by the respondent Government on 20 June 1991 and the applicant's observations in reply submitted on 2 September 1991;   Having regard to the Commission's decision of 2 September 1991 to refer the case to the Second Chamber;   Having regard to the report provided for in Rule 47 of the Commission's Rules of Procedure;   Having deliberated,   Decides as follows:   THE FACTS   The applicant, born in 1931, is an Austrian national and resident in Graz.   He is a businessman by profession.   Before the Commission he is represented by his brother Mr. F. Insam, a lawyer practising in Graz.   The applicant complains under Article 6 para. 1 of the Convention about the length of criminal proceedings against him.   The course of the criminal proceedings may be summarised as follows:   On 1 August 1984 Mr. G., a lawyer, as private prosecutor, requested the Vienna District Court (Bezirksgericht) to institute criminal proceedings against the applicant and his wife on charges of defamation and attack on a person's creditworthiness (Kreditschädi- gung).   In the context of bankruptcy proceedings involving the applicant and his divorced wife, they had contended in a letter to the competent commercial court (Handelsgericht) that Mr. G. had committed criminal offences, in particular attempted fraud.   On 30 August 1984 the applicant, who was represented by Mr. F. Insam, commented upon the charges brought against him.   In December 1984 the District Court heard several witnesses, and subsequently ordered other investigations.   The private prosecutor and the accused repeatedly filed submissions and requested the taking of evidence.   On 21 January 1985 the private prosecutor amended his request for prosecution with regard to a further letter, addressed to the official receiver in the bankruptcy proceedings.   On 28 March 1985 the District Court appointed an accountant expert to prepare an opinion concerning the financial transactions related to the applicant's allegations of attempted fraud.   The expert delivered his opinion on 14 October 1985.   On 16 October 1985 the District Court fixed 27 November 1985 as the date for a hearing.   Upon request of the private prosecutor, the hearing was postponed until 9 December 1985, when the District Court adjourned the proceedings sine die in order to take further evidence. On 31 January 1986 the files were sent for one month to the Vienna Public Prosecutor's Office (Staatsanwaltschaft).   In May 1986 the case was assigned to another department of the District Court.   In a procedural note of June 1986 the competent judge stated that he awaited the outcome of relevant civil proceedings pending before the Vienna Regional Court (Landesgericht) before fixing a new date for the trial.   Those civil proceedings had been suspended in April 1986.   The Regional Court had informed the judge that it would send documents relevant for the criminal proceedings.   According to a file note, these documents had not yet arrived on 29 July 1986.   On 26 September 1986 the District Court, following a reminder, fixed the expert's fees.   After successful appeal proceedings, the fees were finally fixed on 23 July 1987.   In the meantime, the applicant repeatedly requested the District Court to fix a new date for the trial.   Furthermore, on 28 April 1987 the District Court heard a further witness, and, on 25 June 1987, held a further hearing.   The District Court decided to re-conduct the trial following the lapse of time and the change of the competent judge. Considering numerous requests to take further evidence, it then adjourned the trial sine die.   In January 1988 the District Court fixed 16 February 1988 as the date for the next trial.   At that date the Court decided to re-conduct the trial due to the lapse of time.   Having heard the applicant, the District Court adjourned the trial sine die in order to take some further evidence.   In March 1988 the case was assigned to another judge at the District Court who noted inter alia that the file was incomplete.   At the next hearing on 14 July 1988 the trial was re-conducted following the change of the competent judge.   Mr. F. Insam stated he would only continue to represent the second accused, i.e. the applicant's wife.   Having heard the applicant and the private prosecutor G., the District Court adjourned the trial sine die.   In October 1988 a hearing was fixed for 18 November 1988.   On 7 November 1988 the applicant requested that the criminal proceedings be transferred to the District Court of Graz, the place of residence of the accused.   On 11 November 1988 the hearing was cancelled.   The request to transfer the proceedings was dismissed by the Supreme Court (Oberster Gerichtshof) on 7 December 1988.   On 25 January 1989, at the next hearing, the District Court dismissed the applicant's request to hear the witnesses who had given testimony during the investigations and decided to close the taking of evidence.   The District Court convicted the applicant, in respect of his submissions in the letter to the official receiver, of having attacked G.'s creditworthiness, and sentenced him to pay a fine of AS 14,000.   The sentence was suspended on probation.   The accused were acquitted of the remaining charges.   In the judgment, the Court made extensive findings as to the private and business context of the criminal proceedings and in particular the bankruptcy proceedings concerned.   The applicant and the private prosecutor announced appeals.   In a file note of 22 February 1989 the competent judge stated that after having dictated the judgment she had found at the registry two further voluminous files with annexes which had apparently been prepared by her predecessor.   Pending the transcription of the judgment the files were sent to the Graz District Court to be consulted by the applicant and Mr. F. Insam.   The judgment of 25 January 1989 was served on 7 April 1989.   On 18 April 1989 the applicant filed an appeal (Berufung wegen Nichtigkeit, Schuld und Strafe).   The private prosecutor G. appealed on 21 April 1989.   On 4 May 1989 the applicant commented upon the appeal of the private prosecutor.   The appeals were transmitted to the Vienna Regional Court on 29 May 1989.   On 31 October 1989 the Vienna Regional Court, having held a hearing, quashed the judgment of 25 January 1989 upon the applicant's appeal and acquitted him of the charge of having attacked G.'s creditworthiness.   The appeal of the private prosecutor was dismissed.       THE LAW   The applicant's complaint relates to the length of the criminal proceedings against him.   These proceedings began in August 1984 and terminated on 31 October 1989.   According to the applicant, the length of these proceedings - a period of about five years - is in breach of the "reasonable time" requirement (Article 6 para. 1 (Art. 6-1) of the Convention).   The Government take the opposite view.   The Commission considers, in the light of the criteria established by the case-law of the Convention institutions on the question of "reasonable time" (the complexity of the case, the applicant's conduct and that of the competent authorities), and having regard to all the information in its possession, that a thorough examination of this complaint is required, both as to the law and as to the facts.   For these reasons, the Commission, unanimously,   DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.           Secretary to the Second ChamberPresident of the Second Chamber             (K. ROGGE)        (S. TRECHSEL)