CEDH · CASELAW;REPORTS;ENG — 8 janvier 1993

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                                FIRST CHAMBER                          APPLICATION No. 16704/90                                 Stefan TOTH                                   against                                   AUSTRIA                          REPORT OF THE COMMISSION                         (adopted on 8 January 1993)   TABLE OF CONTENTS                                                                    Page   I.          INTRODUCTION            (paras. 1 - 19). . . . . . . . . . . . . . . . . . . . . 1              A.     The application                  (paras. 2 - 4) . . . . . . . . . . . . . . . . . . 1              B.     The proceedings                  (paras. 5 - 14). . . . . . . . . . . . . . . . . . 1                    a)    The applicant's previous                       Application No. 11894/85                       (paras. 5 - 7). . . . . . . . . . . . . . . . 1                    b)    The present application                       (paras. 8 - 14) . . . . . . . . . . . . . . . 1              C.     The present Report                  (paras. 15 - 19) . . . . . . . . . . . . . . . . . 2   II.         ESTABLISHMENT OF THE FACTS            (paras. 20 - 80) . . . . . . . . . . . . . . . . . . . . 4              A.     Preliminary investigations                  (paras. 20 - 35) . . . . . . . . . . . . . . . . . 4              B.     Trial proceedings before                  the Salzburg Regional Court                  (paras. 36 - 65) . . . . . . . . . . . . . . . . . 5              C.     Appeal proceedings                  (paras. 66 - 80) . . . . . . . . . . . . . . . . . 8   III.        OPINION OF THE COMMISSION            (paras. 81 - 97) . . . . . . . . . . . . . . . . . . . .10              A.     Complaint declared admissible                  (para. 81) . . . . . . . . . . . . . . . . . . . .10              B.     Point at issue                  (para. 82) . . . . . . . . . . . . . . . . . . . .10              C.     Compliance with Article 6                  para. 1 of the Convention                  (paras. 83 - 96) . . . . . . . . . . . . . . . . .10                    1.    Period to be considered                       (paras. 85 - 87). . . . . . . . . . . . . . .10                    2.    Relevant criteria                       (paras. 88 - 89). . . . . . . . . . . . . . .10                    3.    Complexity of the case                       (paras. 90 - 91). . . . . . . . . . . . . . .11                    4.    Applicant's conduct                       (paras. 92 - 93). . . . . . . . . . . . . . .11                    5.    Conduct of the authorities                       (paras. 94 - 96). . . . . . . . . . . . . . .11              D.     Conclusion                  (para. 97) . . . . . . . . . . . . . . . . . . . .12   APPENDIX : Decision on the admissibility of the application . . . .13   I.    INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant, an Austrian citizen born in 1953, is a tap room assistant residing in Graz.   Before the Commission he is represented by Dr. K. Hermann, a lawyer practising in Graz.   3.     The application is directed against Austria whose Government are represented by their Agent, Ambassador H. Türk, Head of the International Law Department at the Federal Ministry for Foreign Affairs.   4.     The application concerns the applicant's complaint under Article 6 para. 1 of the Convention that his case was not heard within a reasonable time.   B.     The proceedings   a)     The applicant's previous Application No. 11894/85   5.     On 12 October 1985 the applicant introduced Application No. 11894/85 in which he complained inter alia under Article 5 paras. 3 and 4 of the Convention of his detention on remand, and under Article 6 para. 1 of the Convention of the length of criminal proceedings.   6.     On 8 May 1989 the Commission declared admissible the applicant's complaints under Article 5 paras. 3 and 4 of the Convention.   The remainder of the application was declared inadmissible, the Commission finding that the length of the proceedings had not then exceeded the "reasonable time" within the meaning of Article 6 para. 1 of the Convention.   7.     On 3 July 1990 the Commission adopted its Article 31 Report on the case, finding violations of Article 5 paras. 3 and 4 of the Convention.   In its judgment of 12 December 1991 the Court also found violations of Article 5 paras. 3 and 4 of the Convention (see Eur. Court H.R., Series A no. 224).   b)     The present application   8.     After the Commission's decision on the admissibility of Application No. 11894/85, the criminal proceedings in which the applicant was involved continued.   The present application concerns the entire length of these proceedings.   It was introduced on 10 April 1990 and registered on 11 June 1990.   9.     On 10 October 1990 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.   10.    The Governments observations were received by letter dated 11 January 1991 and the applicant's observations were dated 18 April 1991.   11.    On 9 April 1991 the Commission referred the application to the First Chamber.   12.    On 9 December 1991 the Commission (First Chamber) declared the application admissible.   13.    The Government submitted observations on the merits on 26 February 1992.   14.    After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present report   15.    The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    J.A. FROWEIN, President of the First Chamber                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            Mr.    M. PELLONPÄÄ   16.    The text of this Report was adopted on 8 January 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   17.    The purpose of the Report, pursuant to Article 31 of the Convention is:   i)     to establish the facts, and   ii)    to state an opinion as to whether the facts found disclose a       breach by the State concerned of its obligations under the       Convention.   18.    The Commission's decision on the admissibility of the application is attached hereto as an Appendix.   19.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Preliminary investigations   20.    On 1 June 1984 the Salzburg Regional Court (Landesgericht) issued a warrant of arrest (Haftbefehl) against the applicant, who was then of unknown abode, on suspicion of having committed, inter alia, the offence of aggravated fraud (schwerer Betrug), together with a certain J.M.   On 24 August 1984, the Salzburg Regional Court issued an international search warrant (Steckbrief) against the applicant.   21.    From 19 to 20 July 1984 the applicant was detained in Zurich in Switzerland for questioning by the police.   22.    On 11 January 1985 at 23h00 the applicant was arrested at Graz airport.   On 12 January 1985 he was heard by the investigating judge at the Graz Regional Court.   On 17 January 1985 the applicant was transferred to Vienna and on 22 January 1985 to Salzburg.   23.    On 23 January 1985 a judge at the Salzburg Regional Court heard the applicant.   On the same day, the Court ordered his detention on remand, inter alia, on suspicion of attempted and completed fraud according to Section 147 para. 3 of the Criminal Code, and on the ground of a danger of absconding and of repetition.   24.    The applicant was heard by the investigating judge on 25, 28, 29, 30 and 31 January and 1 February 1985.   On 7 February 1985 the Swiss authorities announced their intention to prosecute the applicant.   25.    On 15 February 1985 the applicant filed an application for his release from detention which the Review Chamber (Ratskammer) at the Salzburg Regional Court refused on 27 February 1985.   26.    Meanwhile, on 19 February 1985, investigations were instituted with regard to offences allegedly committed by the applicant in Switzerland.   On 1 March 1985 the case-file was sent back from the Review Chamber to the investigating judge who was, however, on holiday until 15 April 1985.   On 30 April 1985 the investigating judge heard the applicant with regard to the co-accused J.M.   From 26 April to 1 May 1985 the applicant served a prison sentence relating to a different offence.   On 15 May and 24 June 1985 the investigating judge requested information from two German banks.   27.    On 19 June 1985, the Linz Court of Appeal (Oberlandesgericht) decided to allow an extension of the applicant's detention on remand for up to eight months as from 23 January 1985.   The applicant filed an appeal against this decision which the Supreme Court (Oberster Gerichtshof) rejected as being inadmissible on 22 August 1985.   The case-file was returned to the investigating judge on 11 September 1985.   28.    On 12 September 1985 the applicant again applied for his release.   29.    On 18 September 1985 the Linz Court of Appeal decided that the applicant's detention on remand could be prolonged for up to 11 months.   30.    On 24 September 1985 the Regional Court decided that the preliminary investigations instituted against the applicant should be extended also to the offence of arson (Brandstiftung) allegedly committed in Switzerland.   The applicant's appeal (Beschwerde) against this decision was rejected on 2 October 1985 by the Review Chamber which found, inter alia, that the applicant had failed to motivate his appeal.   31.    Upon termination of the preliminary investigations the case-file was sent to the Public Prosecutor's Office (Staatsanwaltschaft) on 2 October 1985.   The latter applied on 31 October 1985 for the continuation of the preliminary investigations in order to complete the case-file.   These applications were granted on 7, 15 and 19 November 1985.   The case-file was then transmitted to the Linz Court of Appeal on 3 December 1985 for decision on the prolongation of the applicant's detention.   32.    On 11 December 1985, the Linz Court of Appeal extended the applicant's detention on remand for up to fifteen months.   33.    The applicant applied to be released from detention on remand whereupon the case-file was transmitted to the Review Chamber at the Salzburg Regional Court.   On 2 January 1986 the Review Chamber dismissed the request.   The applicant's further appeal against this decision was dismissed on 22 January 1986 by the Linz Court of Appeal.   34.    Also on 2 January 1986 the applicant was heard by an investigating judge and confronted with a certain S.R.   A final interrogation of the applicant took place on 22 January 1986.   35.    A petition for release, which the applicant addressed to the Constitutional Court (Verfassungsgerichtshof), was dismissed by that Court as inadmissible in a decision issued on 28 February 1986.   B.     Trial proceedings before the Salzburg Regional Court   36.    On 26 February 1986 the preliminary investigations were closed and on 12 March 1986 the Salzburg Public Prosecutor's Office indicted the applicant inter alia on the grounds of partly attempted and partly completed aggravated professional fraud according to Section 147 para. 3 of the Criminal Code.   37.    According to the bill of indictment, the applicant had drawn cheques on various banks in Germany and Austria and given them to Ch.B. and J.M. to cash them in other banks in these countries; in the Federal Republic of Germany the applicant was being sought for 19 instances of fraud.   It was stated that the damages amounted to 950,000 AS in respect of completed fraud and 1,250,000 AS in respect of attempted fraud and that investigations would be pursued in respect of arson and other instances of fraud.   38.    On 11 April 1986 the applicant's objection against the bill of indictment was dismissed by the Linz Court of Appeal which committed the applicant for trial.   39.    Also on 11 April 1986 the Court of Appeal extended the applicant's detention on remand for up to seventeen months in view of the volume and difficulties of the investigations.   40.    On 30 April 1986 the case-file was transferred to the trial judge who on 23 May 1986 ordered the hearing to take place on 11 June 1986. On 5 June 1986 the applicant's lawyer stated that he would no longer represent the applicant after 11 June 1986.   41.    The applicant's trial commenced, and a first hearing took place on 11 June 1986.   Thereafter, the hearing was adjourned.   Also on 11 June 1986, an official defence counsel was appointed.   42.    On 16 June 1986 the applicant requested his release from detention, claiming that he had permanent residence in Austria and confirmation of secure employment.   This request was dismissed on 25 June 1986 by the Salzburg Regional Court and upon appeal on 9 July 1986 by the Linz Court of Appeal.   43.    On 24 July 1986 the Salzburg Regional Court contacted the Vienna Regional Court as to the date of release of Ch.B.   On 29 July 1986 a German court was requested to transmit a decision which arrived on 18 August 1986.   44.    Meanwhile, on 25 July 1986 the applicant filed a further request to be released from detention which was dismissed by the Salzburg Regional Court on 30 July 1986 and, upon the applicant's appeal, by the Linz Court of Appeal on 20 August 1986.   45.    On 22 September 1986 letters rogatory (Rechtshilfeersuchen) were transmitted to the Swiss Federal Office for the Police and to a German court in respect of the witness D.   The file was then sent to a forensic expert who prepared an expert opinion in respect of J.M. on 8 October 1986.   46.    The Salzburg Regional Court again decided on 12 November 1986 not to release the applicant.   On 26 November 1986 the Linz Court of Appeal rejected the applicant's appeal.   47.    Meanwhile, on 12 November 1986 the applicant unsuccessfully attempted to discharge his officially appointed lawyer.   On 17 November 1986 the applicant complained that no date had been fixed for a hearing.   This complaint was to no avail, as the authorities were awaiting evidence from Germany.   On 3 December 1986 a German court transmitted further evidence to the Austrian authorities as to the witness D.   48.    Following the applicant's complaints about his officially appointed lawyer, the Bar Association stated on 16 December 1986 that they saw no reason to appoint another lawyer.   49.    On 12 and 16 December 1986 the trial judge requested the Dornbirn and Bregenz Constabularies to provide the addresses of Ch.B. and S.R. A similar request in respect of Ch.B. was filed with the Salzburg Federal Police Directorate on 22 January 1987.   50.    On 31 December 1986 the applicant filed a request to be released from detention on remand.   This was refused by the Review Chamber at the Salzburg Regional Court on 21 January 1987.   51.    On 28 January 1987 the Review Chamber refused the applicant's request for release from detention.   Upon the applicant's appeal the Linz Court of Appeal decided on 18 February 1987 to release the applicant on conditions, inter alia, that he reported every two days to the police.   The applicant was released on the same day.   J.M. was released from detention on 12 March 1987.   52.    On 2 July 1987 the investigating authorities obtained further information concerning the applicant.   53.    On 9 July 1987 the Salzburg Public Prosecutor's Office indicted the applicant in respect of further instances of fraud.   The bill of indictment was sent to the applicant on 17 July 1987.   The applicant's appeal against the indictment of 9 July 1987 was dismissed by the Linz Court of Appeal on 30 September 1987. On 27 October 1987 these proceedings were joined to the main proceedings.   54.    Meanwhile, on 23 July 1987 the President of the Salzburg Regional Court decided that the applicant now had to report weekly to the police.   The applicant's appeal against this decision was declared inadmissible by the Linz Court of Appeal on 9 September 1987. Nevertheless the Court found that the decision of 23 July 1987 had not been passed by the competent judicial authority for which reason it quashed the decision while ordering a bench of three judges to take the decision.   On 30 September 1987 a bench of three judges at the Salzburg Regional Court again reached the same conclusion as the President in his decision of 23 July 1987.   The applicant's appeal was declared inadmissible on 4 November 1987 by the Linz Court of Appeal.   55.    On 2 November 1987 the Salzburg Public Prosecutor's Office requested the trial to be fixed as soon as possible.   56.    On 12 February 1988 the applicant requested photocopies of certain documents.   57.    On 22 February 1988 further trial hearings before the Salzburg Regional Court were fixed for 25 and 26 May 1988.   The photocopies were sent to the applicant.   58.    On 24 February 1988 the Court was informed that the summons to the trial of the witnesses Ch.B. and S.R. could not be served.   On 10 March 1988 the Court asked the Feldkirch authorities for the address of Ch.B. On 14 March 1988 the Court was informed that Ch.B.'s address was unknown.   59.    On 15 March 1988 the further witness M. D. informed the Salzburg Regional Court that she would be abroad and could therefore not be present at the trial hearing.   60.    On 17 March 1988 the Bregenz authorities informed the Salzburg Regional Court of the address of S.R. and that the witnesses Ch.B. and G.D. were detained on remand in the Federal Republic of Germany.   61.    Upon the Salzburg Regional Court's further inquiry of 18 March 1988 information was received by telephone on 18 April 1988 that Ch.B. was now detained at Feldkirch prison.   The Salzburg Regional Court then requested Ch.B.'s presence (Vorführung) at the trial hearing.   62.    On 18 May 1988 the Salzburg Regional Court filed a letter rogatory with the Aschaffenburg District Court (Amtsgericht) in the Federal Republic of Germany as to whether the witness G.D. would agree to come to Salzburg for questioning.   The District Court replied that G.D. would not agree.   63.    The hearing took place on 25 and 26 May 1988, the minutes of the hearing eventually comprising 87 pages.   64.    On 26 May 1988 the Salzburg Regional Court convicted the applicant of aggravated fraud and of forgery and sentenced him to four and a half years' imprisonment.   The periods of time which the applicant had spent in detention, inter alia from 19 to 20 July 1984, were deducted from the sentence.   J.M. was conditionally sentenced to three years' imprisonment.   65.    The reasons of the judgment of 26 May 1988, numbering 69 pages, were served on the applicant on 1 June 1989.   C.     Appeal proceedings   66.    Following the judgment the applicant announced that he would file a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung). The Public Prosecutor's Office announced that it would file an appeal.   67.    On 17 June 1988 the applicant announced his representation by his present lawyer.   68.    On 18 July 1988 the applicant requested the transmission of the case-file to the Graz District Court (Bezirksgericht) for consultation. He also requested a copy of the minutes of the hearing to be sent to his lawyer.   The applicant repeated this request on 16 September 1988.   69.    On 19 September 1988 the case-file was transmitted to the Graz District Court.   It was returned to the Salzburg Regional Court on 7 October 1988.   70.    On 14 March 1989 the applicant filed a request temporarily to suspend the obligation to report weekly to the police in order to participate in the hearing before the Commission in Strasbourg in Application No. 11894/85 on 8 May 1989.   Following a first examination of the request by the Public Prosecutor's Office on 23 March 1989, the applicant's lawyer was requested on 30 March 1989 to submit a copy of the Commission's summons for the hearing, and to explain whether the applicant's personal appearance before the Commission would be necessary.   71.    The applicant's lawyer submitted the necessary documents on 3 April 1989.   72.    On 5 April 1989 the case-file was transmitted to the Federal Ministry of Justice for the preparation of the hearing. It was returned to the Salzburg Regional Court on 14 April 1989.   73.    On 21 April 1989 the Salzburg Regional Court temporarily suspended the applicant's obligation to report to the police in order to enable him to participate in the hearing before the Commission in Strasbourg.   74.    On 15 June 1989 the applicant filed a plea of nullity and an appeal to the Austrian Supreme Court (Oberster Gerichtshof).   75.    On 4 July 1989 a bank acting as private party to the proceedings filed a statement on the applicant's appeal and plea of nullity.   On 5 July 1989 the various remedies were brought before the Supreme Court.   76.    The Supreme Court dismissed the applicant's plea of nullity on 14 September 1989 and transferred the appeal for decision to the Linz Court of Appeal.   77.    On 3 October 1989 the applicant requested termination of the obligation to report to the police.   On 9 October 1989 the Public Prosecutor's Office opposed this request in view of the prison sentence imposed on the applicant.   On 18 October 1989 the Salzburg Regional Court dismissed the applicant's request.   78.    On 23 October 1989 the Linz Court of Appeal, after conducting an appeal hearing, partly upheld the applicant's appeal.   It considered mitigating circumstances and also "the long period of time since the offence" and the applicant's good conduct since his release and reduced the sentence to four years.   The reasons of the appeal decision, numbering five pages, were served on the applicant on 22 November 1989.   79.    On 17 November 1989 the Salzburg Regional Court ordered the applicant within a month to commence serving the remaining prison sentence amounting to one year, ten months, twenty seven days and seventeen hours.   80.    Upon the applicant's further request, the Regional Court on 16 May 1990 noting that the applicant had already served half the sentence suspended the execution of the remainder for a probation period of three years.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   81.    The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.   B.     Point at issue   82.    The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   83.    The applicant complains that the criminal proceedings against him were not terminated within a reasonable time.   He relies on Article 6 para. 1 (Art. 6-1) of the Convention which includes the following provision:         "In the determination of ... any criminal charge against him,       everyone is entitled to a ... hearing within a reasonable time       by (a) ... tribunal ..."   84.    The Government submit that the proceedings did not attain an unreasonable length.   1.     Period to be considered   85.    The Commission considers that the period to be examined under Article 6 para. 1 (Art. 6-1) of the Convention commenced with the applicant's arrest in Austria on 11 January 1985.   86.    The period ended on 22 November 1989 when the written reasons of the decision of the Linz Court of Appeal of 23 October 1989 were served on the applicant.   87.    Accordingly, the period to be examined under Article 6 para. 1 (Art. 6-1) of the Convention lasted four years, ten months and eleven days.   2.     Relevant criteria   88.    The reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 17 para. 28).   89.    According to the Government, the length of the period in question is due to the complexity of the case and the applicant's conduct.   3.     Complexity of the case   90.    The Commission notes that the authorities had to investigate charges brought against the applicant and another person concerning numerous instances of fraud committed in Austria and abroad.   Thus, the case concerned certain complex facts.   91.    The Commission nevertheless considers that this complexity cannot under Article 6 para. 1 (Art. 6-1) in itself justify the period at issue.   It finds a confirmation herefor in the Court's judgment in the Toth case, concerning the applicant's previous complaint under Article 5 para. 3 of the Convention about the length of his detention on remand.   Therein the Court found that "the length of the proceedings ... would in fact seem essentially not to be attributable ... to the complexity of the case ...   Although the offences of which Mr. Toth was accused were numerous and concerned several countries, they were relatively commonplace and repetitive" (see Eur. Court H.R., Toth judgment of 12 December 1991, Series A no. 224, p. 21, para. 77).   4.     Applicant's conduct   92.    As regards the applicant's conduct, the Commission recalls that Article 6 (Art. 6) of the Convention does not require a defendant in criminal proceedings actively to cooperate with the prosecuting and judicial authorities.   Neither can any reproach be levelled against him for having made full use of the remedies available under the domestic law.   Nevertheless, such conduct constitutes an objective fact, not capable of being attributed to the respondent Government, which is to be taken into account when determining whether or not the proceedings lasted longer than the reasonable time referred to in Article 6 para. 1 (Art. 6-1) of the convention (see Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 36, para. 82).   93.    In the present case the many appeals and requests filed by the applicant contributed to some extent to the length of the proceedings, but they cannot in themselves justify this delay.   5.     Conduct of the authorities   94.    As regards the conduct of the authorities, the Commission notes at the outset that the authorities were frequently confronted with appeals and requests filed by the applicant.   These would have necessitated frequent transmission of the case-file.   Nevertheless, it has not been shown that the possibility of preparing copies of the case-file was considered in order to avoid delays in the conduct of the proceedings (see Eur Court H.R., König judgment of 28 June 1978, Series A no. 27, p. 36, para. 104; Toth judgment, loc. cit. para. 77).   95.    As regards the various stages of the proceedings, the Commission considers that the circumstances of the present case call for an overall assessment (see Eur. Court H.R., Obermeier judgment of 28 June 1990, Series A no. 179, p. 23, para. 72; Ficara judgment of 19 February 1991, Series A no. 196-A, p. 9, para. 17).   In particular it suffices to note that between 1987 and 1989 there were a number of periods of inactivity.   96.    The Commission has already found above (paras. 91, 93) that the complexity of the case and the conduct of the applicant cannot in themselves justify the length of the criminal proceedings.   It considers that, as a result of the delays in the conduct of the proceedings, for which the Austrian authorities must be held responsible, the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.         CONCLUSION   97.    The Commission concludes, by a unanimous vote, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention   Secretary to the First Chamber        President of the First Chamber          (M.F. BUQUICCHIO)                         (J.A. FROWEIN)