CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 20178/92                       by Franz HENGL                       against Austria        The European Commission of Human Rights sitting in private on 1 December 1993, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS              Mrs.   M.F. BUQUICCHIO, Secretary to the 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 15 January 1992 by Franz HENGL against Austria and registered on 17 June 1992 under file No. 20178/92;        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 applicant is an Austrian citizen born in 1940.   He is represented before the Commission by Mr. A. Rosicky, a lawyer practising in Vienna.   The facts of the case, as submitted by the applicant and apparent from the documents lodged with the application, may be summarised as follows.        Criminal proceedings were opened against the applicant in 1982 under file number 12 Vr 9703/82.   In the indictment of 12 August 1988 the applicant was accused of various fraud offences committed between 1980 and 1986.   He was later also accused of threatening, amongst others, a legal aid lawyer.        From 2 July 1986 until 30 June 1987 the applicant was in detention on remand.   He was released because the Vienna Court of Appeal (Oberlandesgericht) refused to extend the permitted period of detention in that, given the complexity of the case, it was unlikely that the indictment and trial would be in the foreseeable future.        On 2 June 1987 the applicant's privately employed lawyer was questioned by the Vienna Regional Court as to some AS 1,000,000 which had been deposited with him by the applicant in 1984, before the lawyer had been representing the applicant.   The lawyer gave information as to how and when he had received the sum, but declined, by reference to Article 153 of the Code of Criminal Procedure (Strafprozeßordnung), to give information as to smaller sums (of some AS 100,000) which the lawyer had received.   Article 153 of the Code of Criminal Procedure provides for a limited right for witnesses to refuse to give evidence when they run the risk of criminal proceedings or direct financial disadvantage.        On 5 June 1987 the Review Chamber (Ratskammer) of the Regional Court excluded the lawyer from further representing the applicant.   The Chamber relied on Article 40 para. 1 of the Code of Criminal Procedure which prohibits representation by persons who have been summoned as witnesses in the trial, and states that the Review Chamber shall determine whether persons who have been have heard as witnesses at an earlier stage should be excluded from representation.   The Review Chamber noted that the lawyer had declined to answer certain questions by reference to Article 153 of the Code of Criminal Procedure, and found that there was a risk of a conflict of interests.   Accordingly, the lawyer was excluded.   The applicant's appeal against the decision of 5 June 1987 was rejected by the Vienna Court of Appeal (Oberlandesgericht) on 6 December 1988 on the ground that such decisions of the Review Chamber could not be appealed.        On 31 January 1990 the trial (Hauptverhandlung) was opened.   The applicant was in hospital.   On 9 February 1990 the President of the Regional Court ordered the applicant's detention on remand (Untersuchungshaft) on the ground that there was a risk that he would abscond and that he would commit criminal offences.   The Review Chamber rejected his appeal against this decision on 28 February.   On 21 February the Regional Court had refused an application for release (Enthaftungsantrag).   On 20 March 1990 the Vienna Court of Appeal rejected the applicant's complaints (Beschwerden) against the decisions of 21 and 28 February.        The applicant was convicted on 18 May 1990 and sentenced to a six years' prison sentence.   The Regional Court ordered that he should remain in detention on remand.   The applicant's complaint against the remand order was rejected by the Court of Appeal on 21 June 1990.        The applicant's plea of nullity was rejected in part by the Supreme Court on 29 August 1991.   On 17 October 1991 the Supreme Court dealt, in a public hearing, with the remainder of the plea of nullity and with the applicant's appeal against sentence.   It accepted the plea of nullity in part and remitted the question of sentence in respect of part of the conviction to the Regional Court.   The remainder of the plea of nullity was rejected, and the prison sentence reduced to five and a half years.        The judgment of the Supreme Court was received by the applicant's representative on 30 January 1992.   COMPLAINTS        The applicant alleges a violation of Article 6 of the Convention in the following respects:   1.    He considers that the proceedings, which began in 1982, lasted an unreasonable time within the meaning of Article 6 para. 1 of the Convention;   2.    He considers that the exclusion in 1987 of the lawyer he had chosen to represent him violated Article 6 para. 3(c) and Article 6 para. 1 of the Convention;   3.    He considers that the exclusion of his chosen lawyer resulted in his having to rely on the services of officially appointed lawyers, and that one of these lawyers, who represented him at his trial, did not have sufficient time to prepare the case, in violation of Article 6 para. 1 and Article 6 para. 3(b) of the Convention;   4.    He considers that, during the trial on 11 May 1990, the Court failed to establish that one of the expert witnesses was not in fact an appropriate person, in violation of Article 6 para. 1 of the Convention;   5.    He considers that the time spent in detention on remand was in violation of Article 6 of the Convention.   THE LAW   1.    The applicant alleges that the length of the proceedings exceeded the "reasonable time" prescribed by Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission notes that the proceedings against the applicant were opened in 1982, although the indictment eventually related principally to offences committed in the period 1980 to 1986.   The applicant's representative received the judgment of the Supreme Court on 30 January 1992.        The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2(b) of the Rules of Procedure, to give notice of this complaint to the respondent Government.   2.    The applicant also alleges a violation of Article 6 (Art. 6) of the Convention in that his chosen lawyer was excluded from representing him, in that his legal aid lawyer had inadequate time for preparation of the case, and in that the court failed to establish that one expert witness was not an appropriate person for the type of proceedings in question.        However, the Commission is not required to decide whether or not these facts disclose any appearance of a violation of Article 6 (Art. 6) of the Convention as the applicant has failed to establish that he has exhausted the remedies available under Austrian law, in accordance with Article 26 (Art. 26) of the Convention.   In particular, and notwithstanding a specific request from the Commission's Secretariat, he has failed to submit a copy of his plea of nullity from which he would be able to establish that these matters were raised on appeal.   Moreover, it does not appear from the documents submitted that the matters were raised at the trial, as required by Austrian law when procedural rather than substantive errors of law are alleged. Furthermore, with regard to the allegedly inadequate time available to the legal aid lawyer, the Commission notes that a plea of nullity can be made on the ground that there was inadequate time for preparation of the case, even where the formal time limits have been observed (SSt 11/88, EvBl 1975/180).        It follows that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.    Finally, the applicant complains that the time he spent in detention on remand exceeded the "reasonable time" prescribed by Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission has considered this complaint under Article 5 para. 3 (Art. 5-3) of the Convention, which deals specifically with the length of detention on remand, rather than Article 6 (Art. 6).        The Commission is only required to have regard to the length of the detention on remand which began on 9 February 1990, that is, after the applicant had failed to attend the initial stages of the trial. Earlier detention on remand (2 July 1986 to 30 June 1987) cannot be considered by virtue of the six months' time limit contained in Article 26 (Art. 26) of the Convention (cf. No. 7975/77, Dec. 13.12.78, D.R. 15 p. 169, 195).        It is not clear from the applicant's submissions and the documents lodged when, for the purposes of Austrian law, the detention on remand ordered on 9 February 1990 in fact ended.   The Regional Court ordered that the detention should continue after conviction, even though the applicant had given notice of intention to appeal.   For the purposes of the Convention, however, detention subsequent to a conviction at first instance is regarded as detention "after conviction by a competent court" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention (cf. Eur. Court H.R., B. v. Austria judgment of 28 March 1990, Series A no. 175, pp. 14-16 paras. 35-40). Accordingly, the period to be taken into consideration by the Commission for the purposes of the present question under Article 5 para. 3 (Art. 5-3) of the Convention begins on 9 February 1990, when the applicant was detained.   It ends on 18 May 1990, when the applicant was convicted by the Regional Court.        The Commission finds that this period of a little over three months does not exceed the "reasonable time" requirement of Article 5 para. 3 (Art. 5-3) of the Convention.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission unanimously        ADJOURNS its examination of the complaint as to the length      of the proceedings;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)