CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 avril 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. 20520/92                     by H.L. W.                     against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 7 April 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                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 27 April 1992 by H.L. W. against Austria and registered on 24 August 1992 under file No. 20520/92;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 26 March 1993 and the observations in reply submitted by the applicant on 29 April 1993;        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 1942, is an Austrian national and resident in Vienna. He is a transport worker by profession. Before the Commission he is represented by Mr. K. Bernhauser, a lawyer practising in Vienna.        In the context of criminal proceedings in the Federal Republic of Germany against St., relating to charges of conspiracy (ver-brecherischer Komplott), the applicant and two other persons were questioned as witnesses by Austrian authorities in proceedings under letters rogatory. In July 1988 the Vienna Public Prosecutor's Office (Staatsanwaltschaft) commenced investigations against the applicant and three further persons, all Austrian nationals, on the suspicion of conspiracy committed in Germany, and enquired in particular about the state of the criminal proceedings in Germany. The Austrian authorities were informed that the Kiel Public Prosecutor's Office had preferred an indictment against St. who had been regarded as German national, and that the proceedings against the others had been discontinued due to their absence.        According to S. 65 para. 1 (1) of the Austrian Penal Code (Strafgesetzbuch), Austrian penal law applies to offences committed abroad, provided the offence is also subject to punishment under the laws of the State concerned, if the offender was an Austrian national at the time of the offence in question, or if the offender acquired Austrian nationality at a later stage and was still Austrian national when the criminal proceedings were instituted against him. S. 65 para. 4 of the Penal Code provides, inter alia, that the offender shall not be punished if he has been finally acquitted or exempted from prosecution; if he has been finally sentenced by a foreign court and the sentence has been fully or partly served, if he has been pardoned; and as long as the enforcement of a sentence imposed by a foreign court is suspended.        On 12 December 1989 the Investigating Judge at the Vienna Regional Court (Landesgericht) questioned the applicant on the charge of conspiracy, committed with the above-mentioned further suspects between February and May 1987 in Germany.        On 5 April 1990 the Vienna Public Prosecutor's Office preferred the indictment against the applicant and three other accused. They were charged with conspiracy to kidnap and rob. The Prosecutor's Office, in the indictment, noted that the accomplice St. was prosecuted separately in Germany.        On 7 June 1990 the Vienna Court of Appeal (Oberlandesgericht) dismissed the objection of one of the accused against the indictment and committed the accused for trial. The files were transferred to the Presiding Judge at the Vienna Regional Court. In the subsequent period, the Court repeatedly asked the Kiel District Court and the Prosecutor's Office, respectively, for information about the state of the German proceedings where the accused St. had not yet been committed for trial. In March 1991 the Court was informed that the main proceedings against St. had meanwhile started. Considerable delays were, however, to be expected, and the trial had not yet been scheduled.        On 10 July 1991 the Vienna Regional Court fixed date for the trial against the four accused which was held on 26 August 1991. At the trial the applicant's defence counsel requested that the state of the German proceedings again be clarified. The hearing was postponed sine die.        Following the information that, in the context of the German proceedings, the accused St. had been acquitted on 5 March 1992, the Vienna Regional Court discontinued the criminal proceedings against the applicant and the co-accused on 17 March 1992. The decision was served upon the applicant on 23 April 1992.     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 these proceedings were excessively delayed in the period between indictment and trial before the Vienna Regional Court.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 27 April 1992 and registered on 24 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 26 March 1993 the Government submitted their observations. The observations in reply by the applicant were submitted on 29 April 1993.     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 Government, having regard to the criteria established in the case-law of the Convention organs, consider that the proceedings against the applicant did not last unreasonably long.          The Commission notes that the relevant period to be considered under Article 6 para. 1 (Art. 6-1) started on 12 December 1989 when the applicant was questioned as a suspect. The proceedings ended on 23 April 1992 when the decision of 17 March 1992 to discontinue the proceedings was served upon the applicant. They lasted about two years, four months and two weeks.        The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case, having regard to the complexity of the case and the conduct of the applicant and the competent authorities (cf. Eur. Court H.R., Ficara judgment of 19 February 1991, Series A no. 196-A, p. 9, paras. 16-17).        As regards the complexity of the case, the Commission notes that the criminal proceedings against the applicant and three co- accused related to a charge of conspiracy committed in Germany. Criminal proceedings had in fact been instituted against them in Germany, which were conducted by the Kiel Public Prosecutor's Office and the Kiel District Court. Prosecution in Austria was initiated having regard to the Austrian nationality of the offenders. Especially the link to the German proceedings due to the preliminary question of the Austrian jurisdiction to prosecute the accused, in accordance with S. 65 of the Austrian Penal Code, created some procedural difficulties.        When examining the conduct of the Austrian authorities in handling the case, the Commission notes that, following the applicant's questioning by the Investigating Judge in December 1989, it took the Public Prosecutor's Office less than four months to prefer the indictment against the applicant and his co- accused. The objection of one of the accused against the indictment was decided within two months. It is true that the Vienna Regional Court, before fixing a date for the trial against the accused, spent thirteen months inquiring about the state of the German prosecution proceedings against in particular one of the accused. The outcome of these proceedings were, however, of relevance for the Austrian jurisdiction in the case. It does not appear unreasonable that the Regional Court did not proceed with the case before being informed by the German authorities that they expected considerable delays in the conduct of their proceedings. Moreover, at the trial in August 1991, it was the defence requesting that the state of the German proceedings again be clarified. The Vienna Regional Court discontinued the proceedings a few days after the acquittal of St. in Germany.        In these circumstances the Commission finds no considerable periods of inactivity on the part of the Austrian authorities, and in particular no undue delays caused by the conduct of the Vienna Regional Court, which would warrant the conclusion that the overall length of the proceedings was excessive. Consequently, there is no appearance of a violation of the applicant's right to a hearing within a "reasonable time", as guaranteed under Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that 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        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                    (A. WEITZEL)