CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 juin 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. 21024/92                        by Ernst VOLKERT                        against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 27 June 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. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN              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 2 September 1992 by Ernst VOLKERT against Austria and registered on 2 December 1992 under file No. 21024/92;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 1 December 1993 to communicate the      application;   -     the observations submitted by the respondent Government on      23 February 1994 and the observations in reply submitted by the      applicant on 11 October 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen born in 1945 and living in Vienna.        He is represented by Mr. K. Bernhauser, a lawyer practising in Vienna.        On 10 May 1982 the applicant represented by counsel, Mr. G. Zanger, a lawyer in Vienna, wrote to the Public Prosecution at Vienna Regional Court (Landesgericht) accusing himself of negligent bankruptcy (fahrlässige Krida).   At the same time he made a request to the Vienna Regional Court for composition proceedings (Ausgleichsantrag).   On 9 July 1982 the investigating judge at the Vienna Regional Criminal Court decided to institute preliminary investigations and summoned the applicant for 27 July 1982, who, despite being duly summoned, did not present himself.        On 22 February 1985 the Public Prosecution filed an indictment against the applicant and a certain SCH. accusing SCH. of counts of negligent and fraudulent bankruptcy and of other economic offences and the applicant of negligent bankruptcy.   According to the indictment, received by the trial court on 27 March 1985, SCH. was the responsible manager of the SCH. Ltd. company and the applicant responsible manager of the V. Ltd. company.    SCH. and the applicant as well as their companies worked closely together.   The two managers were considered to be responsible for the financial breakdown of their companies causing losses to the companies' creditors in the amount of AS 10.5 million in the case of the SCH. company and 23.5 million in the case of the V. company.   The applicant was inter alia accused of having between 1980 and 11 May 1982 increased the debts of his company by at least AS 1.4 million knowing that the company was insolvent and of having suppressed the companies's accounts.   In addition the applicant had increased his own insolvency by offering security for debts of the SCH. company.        According to the indictment SCH. had in June 1982 absconded, and returned to Austria in 1984.   He could first be interrogated by the police for economic crimes in August 1984.        A first hearing took place on 26 August 1985 and the case was adjourned sine die for the purpose of the preparation of an expert opinion.        On 7 August 1986 the expert opinion was submitted and on 8 August 1986 was sent to the Public Prosecution for their observations.        On 23 January 1987 the presiding judge decided to join the proceedings against one M.G. with the pending proceedings.        On 20 April 1987, the Public Prosecution submitted further results of investigations carried out by the police for economic crimes on 27 January 1987.        On 30 April 1987 the presiding judge requested that the complete files be submitted to him.        On 27 July 1988 he fixed the trial hearing to take place on 8 August 1988.        At the hearing of 8 August 1988 the co-accused SCH. and M.G. and two witnesses were heard while the applicant was absent.        A further hearing was fixed for 5 September 1988 and had to be postponed because of the absence of a lay judge.        On 5 September 1988 the Public Prosecution informed the Vienna Regional Court that it intended to modify and extend the indictment as continued investigations brought to light further objectionable business transactions.        On 15 September 1988 the trial continued and the applicant as well as three witnesses were heard.   The indictment was modified and extended.        On 15 September 1988 another hearing was held.   The indictment was extended.   The applicant was convicted by the Vienna Regional Court on seven counts of negligent bankruptcy, one count of aggravated fraud (schwerer Betrug) and two counts of fraudulent bankruptcy.   The objectionable business transactions were according to the court carried out in the applicant's case between October 1979 and May 1984 in respect of negligent bankruptcy, in January 1982 in respect of the aggravated fraud and between April 1982 and May 1984 in respect of a count of fraudulent bankruptcy and aggravated fraud.   The judgment which inter alia describes the business transactions in question comprises 75 pages.   The judgment was served on the applicant's lawyer on 2 May 1989.        SCH. and co-accused M.G. were convicted of similar offences, SCH. was acquitted on one count of fraudulent bankruptcy.        The applicant was sentenced to 30 months' imprisonment.   In respect of part of the sentence (20 months imprisonment) the applicant was granted a 3 year period of probation.   On 17 May 1989 the applicant lodged an appeal as to the sentence and a plea of nullity.   The latter remedy was partly granted by the Supreme Court (Oberster Gerichtshof) which on 20 March 1990 in part confirmed the judgment appealed from but sent the case back for a new trial in the respect of one count of aggravated fraud and consequently for a new determination of the sentence.        On 5 November 1991 the applicant and the co-accused M.G. were acquitted on one count of aggravated fraud but he was given an additional sentence of 23 months and 5 days imprisonment for the offenses with regard to which the Supreme Court had confirmed the applicants' culpability.   In fixing the sentence the court had regard to another conviction pronounced by the Regional Court in Klagenfurt on 17 January 1990 imposing a fine for causing wilful damage to property.   The court considered that the additional sentence was necessary in view of the especially high amount of damages caused by the applicant.   Taking into account that the applicant had admitted the offenses and had not committed any criminal acts since May 1984 the court considered that the execution of the total of the sentence could be stayed on probation.        On 8 April 1992 the Vienna Court of Appeal following an appeal lodged by the Public Prosecution amended the sentence to 27 months and 5 days imprisonment granting a period of probation of 2 years with regard to twenty months of this sentence.   This court considered that the fact that the applicant had not committed further offences during a rather lengthy period of proceedings was outweighed by the long periods over which the objectionable business transactions were carried out.   Therefore the court considered it unjustified to grant a period of probation with regard to the total of the sentence.   COMPLAINTS        The applicant considers that the criminal proceedings against him were excessively long taking into account that he laid charges against himself already in 1982.   THE LAW        The applicant's complaint concerns the length of proceedings at issue.   According to the applicant, the length of proceedings is incompatible with the "reasonable time" requirement (Article 6 para. 1 (Art. 6-1) of the Convention).   The Government dispute this argument.        The period to be considered in the present case may be considered to have started on 9 July 1982 when the investigating judge summoned the suspects.   It ended on 8 April 1992 when the Vienna Court of Appeal amended the sentence imposed on the applicant by the trial court.        The Commission notes that the proceedings lasted nearly ten years, a very substantial period.   It therefore considers that, in the light of the criteria established by the case-law of the Convention organs in respect of "reasonable time" (complexity of the case, conduct of the applicant and of the competent authorities), and having regard to all the information in its possession, this complaint requires examination of 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)