CEDH · CASELAW;REPORTS;ENG — 18 octobre 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 }                          EUROPEAN COMMISSION OF HUMAN RIGHTS                                  FIRST CHAMBER                              Application No. 16906/90                                   Gert Lagler                                     against                                     Austria                            REPORT OF THE COMMISSION                          (adopted on 18 October 1995)                                TABLE OF CONTENTS                                                                         Page   I.     INTRODUCTION       (paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1   II.    ESTABLISHMENT OF THE FACTS       (paras. 6-12) . . . . . . . . . . . . . . . . . . . . . . . . . . .2   III.   OPINION OF THE COMMISSION       (paras. 13-22). . . . . . . . . . . . . . . . . . . . . . . . . . .3         A.     Complaint declared admissible             (para. 13). . . . . . . . . . . . . . . . . . . . . . . . . .3         B.     Point at issue             (para. 14). . . . . . . . . . . . . . . . . . . . . . . . . .3         C.     As regards Article 6 para. 1 of the Convention             (paras. 15-21). . . . . . . . . . . . . . . . . . . . . . . .3               CONCLUSION             (para. 22). . . . . . . . . . . . . . . . . . . . . . . . . .4   APPENDIX : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY            OF THE APPLICATION . . . . . . . . . . . . . . . . . . . . . .5   I.     INTRODUCTION   1.     The present Report concerns Application No. 16906/90 introduced on 3 July 1990 against Austria and registered on 20 July 1990.         The applicant is a Austrian national born in 1949 and resident in Vienna.         The respondent Government, Austria, are represented by their Agent, Ambassador F. Cede, head of the International Law Department at the Federal Ministry for Foreign Affairs.   2.     The application was communicated to the Government on 13 February 1992.   Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 5 April 1995.   The decision on admissibility is appended to this Report.   3.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 18 October 1995 in accordance with Article 31 para. 1 of the Convention, the following members being present:               MM.    C.L. ROZAKIS, President                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   M.P. PELLONPÄÄ                   B. MARXER                   G.B. REFFI                   B. CONFORTI                   I. BÉKÉS                   E. KONSTANTINOV                   G. RESS                   A. PERENIC                   C. BÎRSAN                   K. HERNDL   4.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Austria.   5.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   6.     In his application, in which he relies on Article 6 para. 1 of the Convention, the applicant complains of the length of criminal proceedings before the Vienna Regional Court (Landesgericht).   7.     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.   8.     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.   9.     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.   10.    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.   11.    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.   12.    The psychiatric report has not been submitted, and the proceedings remain adjourned.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   13.    The Commission has declared admissible the applicant's complaint that his case has not been heard within a reasonable time.   B.     Point at issue   14.    The only point at issue is whether the length of the proceedings complained of has exceeded the "reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   15.    The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:         "In the determination of ... any criminal charge against him,       everyone is entitled to a ... hearing within a reasonable time       by (a) ... tribunal ..."   16.    The proceedings in question concern criminal charges of financial impropriety.   They accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   17.    These proceedings, which began on 20 April 1982 with the applicant's arrest, are still pending.   They have therefore lasted some 13 and a half years to date.   18.    The Commission recalls that the reasonableness of criminal proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court H.R., Ferraro judgment of 19 February 1991, Series A no. 197-A, p. 9, para. 17).   19.    According to the Government, the length of the period in question is due to the complexity of the case and the applicant's conduct.   They point out that there were no lengthy periods of judicial inactivity, and that on several occasions the applicant was granted time to try to complete his book-keeping.   20.    The Commission considers that the applicant's conduct has undoubtedly made the prosecution's task in the present case very difficult.   There is, however, no obligation on a defendant to contribute to the smooth running of a criminal case, and even with the present applicant, the period of some 13 and a half years before a first instance judgment does not comply with the requirements of Article 6 (Art. 6) of the Convention.   21.    In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.         CONCLUSION   22.    The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                       (C.L. ROZAKIS)