CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 août 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. 22634/93                       by Hannes MLYNEK                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 31 August 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. 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 20 August 1993 by Hannes MLYNEK against Austria and registered on 15 September 1993 under file No. 22634/93;         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 1943.   He lives in Vienna.   This is his fourth application to the Commission.   The background to the present application         The applicant's first application (No. 11688/85) ended with a finding of a violation of the Convention by the Commission and the Committee of Ministers in connection with the length of criminal proceedings against the applicant.   The second and third applications, which also concerned the length of those proceedings (Nos. 15016/89 and 19513/92), ended with decisions by the European Court of Human Rights and the Commission to strike them off the lists of cases (Eur. Court H.R., Mlynek judgment of 27 October 1992, Series A no. 242-C; Comm. Dec. 20.10.92 respectively).   The latter decisions were taken following a settlement between the parties in the following terms:   [German]       "...       1.    Die österreichische Bundesregierung verpflichtet sich, einem vom Beschwerdeführer ... nach Rechtskraft des beschwerde- gegenständlichen Strafverfahrens einzubringenden Antrag ... auf Nachlaß der im Verfahren 12 b Vr 3769/81, Hv 3646/87 (nunmehr: 12 b E Vr 3079/91, hv 1799/91) des Landesgerichtes für Strafsachen entstandenen Kosten und Gebühren (insbesondere Sachverständigengebühren) stattzugeben.       2.    Der Beschwerdeführer erklärt seine obengenannten Beschwerden [Nr. 15016/89 und Nr. 19513/92] als erledigt.       3.    Der Beschwerdeführer und die Republik Österreich erklären, daß sie keinerlei Ansprüche geltend machen werden, die in irgendeiner Weise mit dem Gegenstand der Menschenrechtsbeschwerden Nr. 15016/89 und Nr. 19513/92, nämlich dem in Pkt. 1 gennannten Strafverfahren, in Zusammenhang stehen, und zwar weder im Wege eines Verfahrens vor einer österreichischen Behörde noch vor einer internationalen Instanz.       4.    Kosten der Menschenrechtsbeschwerdeverfahren Nr. 15016/89 und Nr. 19513/92 werden vom Beschwerdeführer nicht geltend gemacht.       5.    Die Geltendmachung von Ansprüchen nach dem strafrechtlichen Entschädigungsgesetz sind im Falle eines Freispruches des Beschwerdeführers in dem unter Punkt 1 genannten Strafverfahren von Punkt 3 nicht erfaßt.       ..."   [Translation]         "...       1.    The Austrian Federal Government undertake to exonerate the applicant, Dr. Hannes Mlynek, ... from the obligation to pay the costs and fees (in particular experts' fees) incurred in the proceedings in case 12 b Vr 3769/81, Hv 3646/87 (now 12 b E Vr 3079/91, Hv 1799/91) before the Vienna Regional Court, in accordance with a claim to be made ... once the decision in the proceedings which are the subject of the application has become final.       2.    The applicant declares that his above-mentioned applications [Nos. 15016/89 and 19513] are to be regarded as settled.       3.    The applicant and the Republic of Austria declare that they will under no circumstances bring before an authority, whether Austrian or international, claims arising in any way from the subject matter of [the aforesaid] human rights applications ..., that is the criminal proceedings referred to in point 1.       4.    The applicant will not pursue a claim for costs and expenses incurred in connection with the proceedings concerning [the said] applications ...       5.    The introduction of claims under the Criminal Law (Compensation) Act in the event of the applicant's acquittal in the criminal proceedings referred to under point 1 is not covered by the undertaking in point 3.       ..."   The facts concerning the present application          On 21 May 1980 criminal proceedings were brought against the applicant in the Vienna Regional Court (Landesgericht).   They led to his conviction, on 30 May 1984, on counts of misappropriation of funds (Untreue) and fraud (Betrug).   On 30 January 1987 the Supreme Court (Oberster Gerichtshof) quashed the judgment and remitted the case to the same court, which re-opened the proceedings on 11 January 1988. The applicant was sentenced, on 23 March 1988, to three years' imprisonment, two of which were suspended, for misappropriation of funds and negligent bankruptcy (fahrlässige Krida).   That judgment was quashed by the Supreme Court on 1 June 1990 and once again remitted to the Vienna Regional Court.         On 16 September 1991, the Vienna Regional Court, following hearings between July and September 1991, convicted the applicant of negligent bankruptcy and sentenced him to 12 months' imprisonment, suspended for one year.         On 8 January 1992 the applicant received the transcript of the hearing of 11 July 1991.   He considered that there were a number of errors in it, and requested the Regional Court to correct the trial record.         On 3 March 1992 the applicant received the written version of the judgment of 16 September 1991, and on 24 March 1992 he appealed against the judgment.         On 27 March 1992 the Regional Court made certain amendments to the record of the proceedings on 11 July 1991.   Some of the amendments were as requested by the applicant, others as requested by the prosecution.   Not all of the applicant's requests for amendment were allowed.   The applicant's complaint (Beschwerde) against the decision of 27 March 1992 was rejected as inadmissible by the Vienna Court of Appeal on 19 February 1993 on the ground that no appeal lay against the results of an application to amend the trial record.         On 24 March 1993 the Vienna Court of Appeal rejected the applicant's plea of nullity.   COMPLAINTS         The applicant alleges a violation of Articles 6 and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention in that the failure to supply him with the transcript of the proceedings on 11 July 1991 prevented him from making further requests for evidence to be taken, and thereby made the proceedings unfair.   He underlines that he only received the transcript in January 1992, even though Austrian law provides for transcripts to be prepared within 48 hours.         The applicant also sees a violation of the Convention in the fact that the request for the transcript to be amended was not dealt with until after the applicant had received the written version of the judgment.   He considers that the declaration he made when settling Applications Nos. 15016/89 and 19513/92 does not prevent him from making the application as those applications related solely to the length of the proceedings, and were in any event settled before the matters now complained of occurred.   THE LAW         The applicant alleges violation of Articles 6 and 13 (Art. 6, 13) of the Convention and of Article 2 of Protocol No. 7 (P7-2) to the Convention.         The Commission notes that, on 15 September 1992, the applicant entered into an agreement with the Government of the Republic of Austria in the context of Application No. 15016/89, which was then pending before the European Court of Human Rights, and Application No. 19513/92, which was then pending before the Commission.   In the declaration which the parties then made, the applicant agreed that he would "under no circumstances bring before an authority, whether Austrian or international, claims arising in any way from the subject matter of [the aforesaid] human rights applications ..., that is the criminal proceedings referred to in point 1".   The Commission must therefore consider whether, as a result of that declaration, the applicant may at all bring the present application.         The Commission recalls that, in the context of an alleged waiver of a right before the domestic authorities, waiver, insofar as it is permissible, must be established in an unequivocal manner and requires minimum guarantees commensurate to its importance (Eur. Court H.R., Pfeifer and Plankl judgment of 25 February 1992, Series A no. 227, p. 16, para. 37).   The Commission finds that these criteria can usefully be applied to a case in which an applicant may have agreed not to bring future applications.         The Commission notes, first, that it has not been alleged that the settlement reached in Applications Nos. 15106/89 and 16513/92 came about as a result of pressure or proposals from the Convention organs, and there is no indication that the applicant was under any undue pressure from the Government.         The Commission next notes that the agreement between the parties in terms refers to "claims arising in any way from the subject matter of [the aforesaid] human rights applications ..., that is the criminal proceedings referred to in point 1".   This includes possible applications to the Commission in connection with other aspects of the proceedings than the length.   Moreover, the agreement expressly excludes certain future proceedings from its scope (an application under the Criminal Law (Compensation) Act if the applicant was acquitted), which indicates that the parties had considered the possibility of further litigation arising from the case.         The Commission therefore finds that the declaration made by the applicant in the context of Applications Nos. 15016/89 and 19513/92 is unequivocal in that it was intended to prevent him from bringing further applications before the Convention organs in connection with the criminal proceedings referred to in it.   It also finds that the Commission's review of whether the declaration was unequivocal or not provides an appropriate procedural guarantee in a case such as the present, where the waiver relates to proceedings under Article 25 (Art. 25) of the Convention, and there is no indication that the applicant was under any misapprehension in agreeing to it.         It follows that the applicant may not claim to be a victim of a violation of the Convention, and 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 by a majority         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)