CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 mars 1994

.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. 20566/92                       by W. S.                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 8 March 1994, 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                  E. KONSTANTINOV              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 22 July 1994 by W. S. against Austria and registered on 31 August 1994 under file No. 20566/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on 5 March       1993 and the observations in reply by the applicant dated 3 May       1993; the Government's submissions of 15 November 1993 and 5 January       1994;         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 1961, is an Austrian national and resident at Günselsdorf. He is a taxi driver by profession. Before the Commission he is represented by Mr. F. Langmayr, a lawyer practising in Vienna.         In March 1987 criminal investigations started against two persons on the suspicion of having committed fraud in the context of a real estate business, which were subsequently extended to several other suspects. Thus, preliminary investigations against the applicant were instituted by the Vienna Regional Court (Landesgericht) on 21 August 1987. In these proceedings the applicant was assisted by Mr. Langmayr as his defence counsel.         In the course of the investigations, more than one hundred victims of frauds were heard as witnesses. The preliminary investigations terminated on 2 September 1988.         On 21 April 1989 the Vienna Public Prosecutor's Office (Staats- anwaltschaft) preferred the indictment (Anklageschrift) against the applicant and fourteen co-accused. They were charged with having professionally committed fraud in that they pretended to be honest estate agents employed by an estate agency in Vienna, and thereby received payments in view of accommodation which they did not and never intended to supply to the clients concerned. The indictment referred to more than one hundred cases and a total damage caused by the offences which amounted to AS 6.5 million.         The bill of indictment was received by the Vienna Regional Court on 12 May 1989.         On 28 June 1989 the bill of indictment was served upon the applicant's defence counsel. In July 1989 two of the applicant's co- accused appealed against the bill of indictment. Following inquiries concerning the whereabouts of two other accused, the bill of indictment could only be served upon them in November 1989. One of these two accused also appealed against the bill of indictment. However, he withdrew his appeal in February 1990. On 11 May 1990 the Vienna Court of Appeal (Oberlandesgericht) finally committed the accused for trial. Meanwhile, the Investigating Judge had also decided on various requests lodged by the Public Prosecutor's Office regarding the joinder of other proceedings against one of the accused, as well as the discontinuation of the prosecution regarding some aspects of the charges.         On 18 May 1990 the Presiding Judge at the Vienna Regional Court received the files. In July 1990 the criminal records regarding the accused were received by the Regional Court. Furthermore, on 27 July 1990 the Presiding Judge ordered that the criminal files concerning previous convictions of some of the accused be obtained.         On 6 March 1991 the dates for the trial against the accused were fixed. Moreover, in March 1991 official defence counsel for various accused were appointed.         The Vienna Regional Court conducted the trial every day from 8 until 18 April 1991 when it was adjourned sine die. In July 1991 copies of the files were produced for the various official defence counsel, and subsequently the file was transmitted to the Public Prosecutor's Office for further action. The file was returned on 20 August 1991.         On 30 August 1991 the dates for the further trial against the accused were fixed. The trial was conducted from 15 until 18 October 1991.         On 18 October 1991 the trial was closed, and the applicant was convicted of fraud and sentenced to sixteen months' imprisonment.         The applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against the Regional Court's judgment. The written version of the judgment, which comprised altogether 182 pages, was served upon the applicant's counsel on 18 March 1992.         On 22 April 1992 the files were transmitted to the Public Prosecutor's Office for comments on the applicant's and other co-accused's appeals. The files were returned six days later. The Regional Court's report transmitting the appeals with the files was received by the Supreme Court on 6 May 1992.         On 21 October 1992 the Austrian Supreme Court (Oberster Gerichts- hof) rejected the applicant's plea of nullity as having been lodged out of time, and decided that the files be transferred to the Vienna Court of Appeal for a decision on the applicant's appeal regarding the sentence imposed upon him. As regards the applicant's plea of nullity, the Supreme Court found that the applicant had failed to file the reasons for his plea of nullity within the general time-limit of two weeks. The Supreme Court noted that the indication in the Regional Court's judgment according to which there was a time-limit of four weeks to file the reasons for the plea of nullity had been erroneous.         At that stage of the proceedings, the case files comprised twelve volumes of more than 5,500 pages and two boxes with annexes.         On 6 November 1992 the applicant lodged a request for the reinstatement of the proceedings regarding his plea of nullity.         In the course of the present proceedings before the Commission, the files concerning the criminal proceedings against the applicant and others were transmitted to the Federal Ministry of Justice between 18 November and 17 December 1992.         On 25 August 1993 the Supreme Court granted the applicant's request for the reinstatement, but dismissed his plea of nullity. The Supreme Court also decided that the files be transferred to the Vienna Court of Appeal for a decision on the applicant's appeal.         On 16 November 1993 the Vienna Court of Appeal dismissed the applicant's appeal.   COMPLAINTS         The applicant complains under Article 6 para. 1 of the Convention about the length of the criminal proceedings against him. He submits in particular that there was an excessive delay in fixing the date for the trial.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 22 July 1992 and registered on 31 August 1992.         On 2 December 1992 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.         On 5 March 1993 the Government submitted their observations. The observations in reply by the applicant were submitted on 3 May 1993. The Government made further submission on 23 November 1993, 5 January and 7 February 1994.   THE LAW         The applicant complains about the length of the criminal proceedings against him.         Article 6 para. 1 (Art. 6-1), so far as relevant, provides that "in the determination ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time".         The criminal proceedings against the applicant started on 28 August 1987 and lasted until 16 November 1993.         The Government, referring to the case-law of the Convention organs, argue that the length of the proceedings was mainly due to the complexity of the case. They consider that no considerable delays were imputable to the Austrian authorities.         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 First Chamber        President of the First Chamber         (M.F. BUQUICCHIO)                       (A. WEITZEL)