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. 20523/92                     by Laszlo MUSZKA                     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 26 May 1992 by Laszlo Muszka against Austria and registered on 24 August 1992 under file No. 20523/92;        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, after an extension of the time-limit, on 31 March 1993 and the observations in reply submitted by the applicant on 14 June 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 1946, is an Austrian national and resident in Vienna. Before the Convention he is represented by Mr. R. Soyer, a lawyer practising in Vienna.        On 4 June 1986 the applicant was questioned by the Vienna Federal Police Department (Bundespolizeidirektion) in connection with investigations concerning a series of fraud cases committed to the disadvantage of the Austrian Bundesländer Insurance Company. These proceedings involved initially investigations against about one hundred suspects, including a member of the managing board, and the overall damage caused by the numerous fraud cases amounted to AS 130 million. On 23 September and 1 October 1986 he was again heard by the Vienna Federal Police Department, this time as a suspect.        On 7 January 1987 preliminary investigations were opened against him on the suspicion of having committed fraud in making false insurance claims. On 23 February 1987 the Investigating Judge at the Vienna Regional Court (Landesgericht) heard the applicant on the suspicion against him.        In August 1987 the Vienna Public Prosecutor's Office (Staats-anwaltschaft) preferred the indictment against 22 of the suspects, who appeared to be mainly involved in the fraud cases, and requested the Vienna Regional Court to separate the proceedings.        On 13 November 1987 the Vienna Regional Court decided to separate the proceedings against the applicant and other suspects, and ordered that new files be set up.        In May and August 1988 the Public Prosecutor's Office preferred indictments against further suspects.        In September 1988 the Investigating Judge at the Vienna Regional Court requested the Vienna Federal Police Department to question another suspect, namely the manager of the insurance company concerned, on the applicant's insurance claims. The police report was submitted in January 1989.        On 12 December 1990 the Vienna Public Prosecutor's Office preferred the indictment against the applicant. He was charged with having committed fraud on several counts to the detriment of the above-mentioned insurance company. The Office also requested the Regional Court to discontinue the prosecution regarding several other charges. The Regional Court decided accordingly on 22 February 1991.        In April 1991 the files were forwarded to a single judge at the Vienna Regional Court to conduct the trial against the applicant. The date for the trial was fixed in October 1991.        The Vienna Regional Court opened the trial against the applicant on 20 November 1991. The hearing was postponed in order to summon a further witness.        On 21 April 1992 the date for the next hearing was fixed.          On 12 May 1992 the trial continued before the Regional Court, and the applicant was convicted of having acted as an accessory to fraud on six counts. He was sentenced to eight months' imprisonment on probation. The applicant was further ordered to pay to the insurance company concerned, which had participated in the proceedings as a private party, AS 464.000 as compensation. The Regional Court found that the applicant had concluded insurance contracts concerning furniture and given false information about occurrences of loss. In fixing the applicant's sentence, the Regional Court considered the fact that the applicant had committed fraud on several counts and the important damage caused as aggravating circumstances. As mitigating circumstances the Court took into account that the applicant had no previous convictions, that others had derived the profit of the offences concerned, that he was in a state of dependence towards these persons, and, moreover, that the offences had been committed a long time ago and that since then the applicant had had a good conduct.        The written judgment was served upon the applicant on 4 September 1992.        On 25 November 1992 the Vienna Court of Appeal (Oberlandes- gericht), following a hearing in the presence of the applicant, dismissed his appeal (Berufung) regarding his conviction and the sentence imposed. However, the Regional Court's decision on the compensation claims of the private party was quashed. The Court of Appeal did not accede to the applicant's argument that, due to the excessive length of the proceedings against him, the right to prosecute him no longer existed. The Court of Appeal considered that anybody, who participated to a limited extent in large-scale frauds, had to accept that the proceedings against him formed part of an overall complex and very time-consuming procedure. The length of the proceedings could not, therefore, be measured only against the charges in respect of the applicant, but in the light of the entirety of the proceedings, which put the alleged excessive length of the proceedings into perspective. Furthermore, neither the Convention nor other legal sources granted immunity from criminal prosecution on the ground of an excessive length of proceedings. Similar considerations applied to the applicant's appeal against the sentence, in which the applicant had again invoked the allegedly excessive length of the proceedings. Moreover, the facts that the offences had been committed a long time ago and that since then he had had a good conduct had been regarded as mitigating circumstances.        On 22 January 1993 the written version of the judgment was served upon the applicant.     COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention about the length of the criminal proceedings against him.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 26 May 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 31 March 1993, after an extension of the time-limit, the Government submitted their observations. The observations in reply by the applicant were submitted on 14 June 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 consider that the applicant can no longer claim to be a victim, within the meaning of Article 25 (Art. 25) of the Convention, of the alleged breach of Article 6 para. 1 (Art. 6-1). They contend that the Court of Appeal considered the argument as to the excessive length of the proceedings and confirmed the first instance court judgment in taking this aspect into account in fixing the sentence.        The Commission recalls that an applicant can no longer claim to be a victim within the meaning of Article 25 para. 1 (Art. 25- 1) of the Convention of a failure to observe the "reasonable time" requirement in Article 6 para. 1 (Art. 6-1) of the Convention if the relevant courts expressly acknowledged the existence of a breach of that provision and if redress has been given (Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 31 para. 67, p. 32 paras. 69-70, p. 39 para. 94; No. 10232/83, Dec. 16.12.82, D.R. 35 p. 213; No. 9299/81, Dec. 12.7.86, D.R. 467 p. 5).        In the present case, the Commission notes that the Vienna Regional Court, in its judgment of 12 May 1992, fixed the applicant's sentence with regard to various mitigating circumstances, inter alia, the facts that the offences had been committed a long time ago and that since then the applicant had had a good conduct. As regards the question of an allegedly excessive length of the proceedings, the Vienna Court of Appeal, in its judgment of 25 November 1992, stated that anybody, who participated to a limited extent in large-scale frauds, had to accept that the proceedings against him formed part of an overall complex and very time-consuming procedure. Thus the length of the proceedings had to be measured, not only against the charges in respect of the applicant, but against the entirety of the proceedings, which put the alleged excessive length of the proceedings into perspective. Regarding the fixing of the sentence, the Court of Appeal further noted that the facts that the offences had been committed a long time ago and that since then he had had a good conduct were considered as mitigating circumstances.        The Commission finds that the Vienna Regional Court and the Vienna Court of Appeal did not expressly or in substance recognise a violation of Article 6 para. 1 (Art. 6-1) of the Convention due to an unreasonable length of the proceedings. Moreover, not the length of the proceedings as such, but the time which had elapsed since the offences in question were committed and the applicant's good conduct since, were considered in fixing the sentence. In these circumstances, the applicant must still be regarded as victim of the alleged violation of his right to a hearing within a reasonable time.        As regards the length of the criminal proceedings against the applicant, the Government maintain that the relevant period started on 12 December 1990 when the indictment was preferred. They consider that the applicant had not been affected by the preceding investigations against him. Moreover, referring to the case-law of the Convention organs, they 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. In this respect, they submit in particular that the Vienna Public Prosecutor's Office took the right course when awaiting the final judgment in the proceedings against the principal offender.        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)