CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 avril 1995

.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. 16906/90                       by Gert LAGLER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 5 April 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              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 3 July 1990 by Gert LAGLER against Austria and registered on 20 July 1990 under file No. 16906/90;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;   -     the Commission's decision of 13 February 1992 to communicate the      application;   -     the observations submitted by the respondent Government on      23 September 1992 and the observations in reply submitted by the      applicant, after expiry of the time limit, on 20 April 1994;   -     the Government's supplemental comments of 26 May 1994 and the      applicant's supplemental comments of 14 February 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen born in 1949.   He lives in Vienna.   The facts of the case, as they have been submitted by the parties, may be summarised as follows.        The applicant was arrested on 20 April 1982 in connection with various charges of commercial impropriety.   He was detained on remand until 18 June 1982.        On 24 September 1984 a formal indictment was brought, accusing the applicant of negligent insolvency.   On 10 October 1984 other charges of commercial impropriety were dropped.        On 30 March 1989 the proceedings were adjourned.   On 3 May 1989 the prosecution requested a third accountant's report in the case, a request which the court granted on 5 June 1989.   On 27 October 1989 the prosecution requested the bringing of criminal proceedings against the applicant for interference with documents relevant to the proceedings. The expert who had been appointed on 5 June 1989 was removed on 16 August 1990 due to delays in preparing his opinion, and a further expert was appointed on 3 September 1990.   That expert informed the court that he was overworked, and a further expert was appointed on 25 September 1990.   That expert reported to the court on 30 October 1991, after having made several interim reports and having complained that the applicant did not co-operate.        On 20 March 1992 the court issued a search warrant against the applicant.   The applicant's home and office premises were searched on 10 April 1992 and documents were seized.   The premises of an adviser of the applicant were also searched.   Appeals against the searches were unsuccessful.        The applicant's trial was due to take place on 29 October 1993. Immediately before it, he submitted over 1,000 pages of documentation. It transpired in the course of the hearing that the applicant's representative was not fully aware of the contents of the documentation, and the applicant alleged, for the first time, that at the time of the events in question, he was not responsible for this actions.   The proceedings were adjourned for the preparation of a psychiatric report on the applicant.        The psychiatric report has not been submitted, and the proceedings remain adjourned.   COMPLAINTS        The applicant alleges a violation of Article 6 para. 1 of the Convention by reason of the length of the proceedings.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 1 July 1990 and registered on 20 July 1990.        On 13 February 1992 the Commission decided to communicate the application to the respondent Government for observations on its admissibility and merits.   The Government submitted their observations on 23 September 1992.        On 20 April 1994, after an extension of the time-limit for submitting his observations and a refusal to grant a further extension which was requested out of time, the applicant submitted his observations in reply.        The Government responded on 26 May 1994, and the applicant made yet further submissions on 14 February 1995.   THE LAW        The applicant alleges violation of Article 6 para. 1 (Art. 6-1) of the Convention by virtue of the length of the proceedings.   The provision provides, so far as relevant, as follows.        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a ... hearing within a reasonable      time ..."        The Government accept that the requirements of Article 26 (Art. 26) of the Convention are met, but consider that the proceedings against the applicant were extremely complex and difficult by virtue of the way in which the applicant had run his businesses, and experts have had to establish when the applicant did or should have become aware of his firms' insolvency.   They have submitted a chronology which shows that there was no single period in which nothing happened, and that the proceedings against the applicant were not suspended.   They point out that the authorities have tried to grant the applicant time to complete his book-keeping, and state that the ensuing delays cannot be ascribed to the Government.   Whilst accepting that a defendant in criminal cases is not required to co-operate with the authorities, they underline that the applicant has made numerous attempts to delay the proceedings and they point, for example, to his submission of 1,000 pages of documents just before the trial began on 29 October 1993.        The applicant, in his observations submitted on 20 April 1994, made extensive comments on the conduct of the proceedings, but not on the Government's observations.   In his unsolicited observations of 14 February 1995, he denies that the proceedings are complex, and considers that the length is due to the experts' unhelpful reports. He regards the Government's observations as tendentious and partially wrong.   He considers that the length of the proceedings has ruined him financially, physically and mentally.        The Commission considers, in the light of the criteria established by the case-law of the Convention institutions of the question of "in 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 as to the merits.        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)                         (C.L. ROZAKIS)