CEDH · CASELAW;REPORTS;ENG — 30 juin 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. 15062/89                         Erwin and Robert SCHIANSKY                                   against                                   Austria                          REPORT OF THE COMMISSION                          (adopted on 30 June 1993)   TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1 - 5). . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The Application. . . . . . . . . . . . . . . . . . . . . 1         B.    The Procedure. . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report . . . . . . . . . . . . . . . . . . . 1   II.    ESTABLISHMENT OF THE FACTS       (paras. 6 - 9). . . . . . . . . . . . . . . . . . . . . . . . 2   III.   OPINION OF THE COMMISSION       (paras. 10 - 18). . . . . . . . . . . . . . . . . . . . . . . 3         A.    Complaint declared admissible            (para. 10) . . . . . . . . . . . . . . . . . . . . . . . 3         B.    Point at issue            (para. 11) . . . . . . . . . . . . . . . . . . . . . . . 3         C.    Compliance with Article 6 para. 1 of the Convention            (paras. 12 - 18) . . . . . . . . . . . . . . . . . . . . 3         CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 4   APPENDIX I:       Partial Decision on the admissibility                  of the application . . . . . . . . . . . . . . . . 5   APPENDIX II:      Final Decision on the admissibility                  of the application . . . . . . . . . . . . . . . . 8   I.     INTRODUCTION   1.     The present Report concerns Application No. 15062/89 by Erwin and Robert Schiansky against Austria, introduced on 2 May 1989 and registered on 29 May 1989.         The applicants are Austrian nationals born in 1952 and 1954 respectively and resident in Vienna.         The applicants have been represented before the Commission since the application was declared admissible by Dr. Martin Prohaska, a lawyer practicing in Vienna.         The respondent Government are represented by Dr. Helmut Türk, Ministry of Foreign Affairs, Vienna.   A.     The Application   2.     On 7 May 1990 the Commission declared inadmissible complaints relating to the fairness of the proceedings and communicated to the Government the complaint concerning the length of the proceedings. Following an exchange of memorials, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 1 April 1992.   The decisions on admissibility are appended to this Report.   B.     The Procedure   3.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 30 June 1993 in accordance with Article 31 para. 1 of the Convention, the following members being present:              MM.    E. BUSUTTIL, Acting President of the First Chamber                  F. ERMACORA                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER                  G. B. REFFI                  B. CONFORTI   C.     The present Report   4.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Austria.   5.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   6.     In their application, in which they rely on Article 6 para. 1 of the Convention, the applicants complain of the length of the proceedings before the Austrian courts.   7.     On 20 February 1985 equipment was removed from a sound studio belonging to the applicants.   The applicants were questioned by the police in the course of routine inquiries in February and March 1985 respectively.   On 6 June 1986 the applicants were questioned by the police in connection with criminal offences.   They were arrested on 8 June 1986 and kept in detention until 19 August 1986 (according to the Government) or 20 August 1986 (according to the applicants).   On 10 September 1986, on the public prosecutor's request, the Vienna Court of Appeal (Oberlandesgericht) transferred the case from the Vienna Regional Court (Landesgericht) to the Korneuburg Regional Court (Kreisgericht) as 80 judges of the Vienna Regional Court had declared themselves biased (the second applicant is himself a judge in Vienna). On 8 May 1987 a request was made for the assistance of a Frankfurt District Court (Amtsgericht) in hearing a possible witness.    The information requested was received on 3 August 1987.   On 16 May 1988 the applicants were acquitted of fraud by the Korneuburg Regional Court.   The applicants' lawyers received the judgment and the prosecution's plea of nullity on 4 November 1988.   8.     On 17 January 1989 the Supreme Court (Oberster Gerichtshof) set aside this judgment pursuant to the prosecution's plea of nullity and remitted the case to the Steyr Regional Court (Kreisgericht).   The Supreme Court's judgment was served on the applicants' lawyers on 2 March 1989.   On 27 June 1989 the Steyr Regional Court appointed a lawyer for the first applicant under Article 41 para. 2 of the Code of Criminal Procedure (Strafprozeßordnung).   The applicants' second trial began before that court on 11 September 1989.   On 15 September the trial was adjourned for further evidence to be taken and for further investigations to be pursued.   On 19 April 1990 the trial resumed at 8.32 a.m., but it was again adjourned at 11.55 a.m. for further witnesses to be heard.   9.     On 27 September 1990 the applicants were acquitted for a second time.   The prosecution appealed.   10.    On 12 February 1991 the applicants informed the Commission that the prosecution had withdrawn its notice of appeal.   The acquittal therefore became final.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   11.    The Commission has declared admissible the applicants' complaint that their case was not heard within a reasonable time.   B.     Point at issue   12.    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   13.    Article 6 para. 1 (Art. 6-1) of the Convention 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 ..."   14.    The proceedings in question concerned alleged insurance frauds. The purpose of the proceedings was to obtain a decision determining a "criminal charge" and they accordingly fell within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   15.    The Commission finds that the proceedings began on 6 June 1986. Although the applicants had in fact been questioned before that date, there is no indication that that earlier questioning related to these proceedings.   The proceedings ended when the prosecution announced their decision to abandon their appeal against the applicants' second acquittal at first instance.   The applicants informed the Commission of that announcement on 12 February 1991.   They were therefore informed shortly before that date, so that the proceedings lasted approximately 4½ years.   16.    The Commission recalls that 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., Ferraro judgment of 19 February 1991, Series A no. 197, p. 9, paras. 16 - 17).   17.    According to the Government, the length of the period in question is due to the complexity of the case and the applicants' conduct.   18.    As to the complexity of the case, the Commission notes that the charges against the applicants were, in themselves, straightforward, and involved nothing more than an allegation that the applicants had engineered a false theft from their sound studio in order to recoup the insurance monies.   Whilst it is true that some investigations took place outside the territory of the respondent State, there is no indication that the proceedings were delayed by this.   19.    As to the conduct of the proceedings by the authorities, the Commission notes that the applicants' first acquittal was set aside by the Supreme Court with the result that the time taken for the first round of proceedings did not, in the event, further matters.   Moreover, whilst the proceedings were before the Steyr Regional Court, there were several periods of inactivity, for example, during the period of almost eight months between 17 January 1989, when the Supreme Court remitted the case to Steyr, and the beginning of the second trial on 11 September 1989, the Steyr court only granted legal aid to the first applicant.   Thereafter, the proceedings were adjourned for over seven months from 15 September 1989 until 19 April 1990, when the trial continued for just one morning before being adjourned for a further five months.   The Commission considers that no convincing explanation of these delays has been advanced by the respondent Government.   As to the applicants' conduct, there is no indication that the applicants were employing delaying tactics in their requests for evidence to be taken and witnesses to be heard.   Indeed, the applicants were eventually acquitted, such that it appears that their various requests bore fruit.   20.    The Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on criminal charges within a reasonable time.   21.    In the light of the criteria established by case-law and having regard to all the information in its possession, the Commission finds that 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   22.    The Commission concludes, unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention   Secretary to the First Chamber    Acting President of the First Chamber          (M.F. BUQUICCHIO)                    (E. BUSUTTIL)