CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 novembre 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. 20178/92                       by Franz HENGL                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 29 November 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                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 15 January 1992 by Franz HENGL against Austria and registered on 17 June 1992 under file No. 20178/92;        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 declare the      application partly inadmissible and to communicate the remainder      to the respondent Government for observations on its      admissibility and merits;   -     the observations submitted by the respondent Government on      31 March 1994 and the observations in reply submitted by the      applicant on 8 June 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen born in 1940.   He is represented before the Commission by Dr. W. Blaschitz, a lawyer practising in Vienna.   The facts of the case, as submitted by the parties, may be summarised as follows.        Criminal proceedings were opened against the applicant on 10 September 1982 under file number 12 Vr 9703/82.   The formal preliminary investigation began on 12 June 1986.   In the indictment of 12 August 1988 the applicant was accused of various fraud offences committed between 1980 and 1986.   He was later also accused of threatening, amongst others, a legal aid lawyer.        From 2 July 1986 until 30 June 1987 the applicant was in detention on remand.   He was released because the Vienna Court of Appeal (Oberlandesgericht) refused to extend the permitted period of detention in that, given the complexity of the case, it was unlikely that the indictment and trial would be in the foreseeable future.        On 2 June 1987 the applicant's privately employed lawyer was questioned by the Vienna Regional Court as to some AS 1,000,000 which had been deposited with him by the applicant in 1984, before the lawyer had been representing the applicant.   The lawyer gave information as to how and when he had received the sum, but declined, by reference to Article 153 of the Code of Criminal Procedure (Strafprozeßordnung), to give information as to smaller sums (of some AS 100,000) which the lawyer had received.   Article 153 of the Code of Criminal Procedure provides for a limited right for witnesses to refuse to give evidence when they run the risk of criminal proceedings or direct financial disadvantage.        On 5 June 1987 the Review Chamber (Ratskammer) of the Regional Court excluded the lawyer from further representing the applicant.   The Chamber relied on Article 40 para. 1 of the Code of Criminal Procedure which prohibits representation by persons who have been summoned as witnesses in the trial, and states that the Review Chamber shall determine whether persons who have been have heard as witnesses at an earlier stage should be excluded from representation.   The Review Chamber noted that the lawyer had declined to answer certain questions by reference to Article 153 of the Code of Criminal Procedure, and found that there was a risk of a conflict of interests.   Accordingly, the lawyer was excluded.   The applicant's appeal against the decision of 5 June 1987 was rejected by the Vienna Court of Appeal (Oberlandesgericht) on 6 December 1988 on the ground that such decisions of the Review Chamber could not be appealed.        On 31 January 1990 the trial (Hauptverhandlung) was opened.   The applicant was in hospital.   On 9 February 1990 the President of the Regional Court ordered the applicant's detention on remand (Untersuchungshaft) on the ground that there was a risk that he would abscond and that he would commit criminal offences.   The Review Chamber rejected his appeal against this decision on 28 February.   On 21 February the Regional Court had refused an application for release (Enthaftungsantrag).   On 20 March 1990 the Vienna Court of Appeal rejected the applicant's complaints (Beschwerden) against the decisions of 21 and 28 February.        The applicant was convicted on 18 May 1990 after a 24-day trial and sentenced to a six years' prison sentence.   The Regional Court ordered that he should remain in detention on remand.   The applicant's complaint against the remand order was rejected by the Court of Appeal on 21 June 1990.        The applicant's plea of nullity was rejected in part by the Supreme Court on 19 September 1991.   On 17 October 1991 the Supreme Court dealt, in a public hearing, with the remainder of the plea of nullity and with the applicant's appeal against sentence.   It accepted the plea of nullity in part and remitted the question of sentence in respect of part of the conviction to the Regional Court.   The remainder of the plea of nullity was rejected, and the prison sentence reduced to five and a half years.        The judgment of the Supreme Court was received by the applicant's representative on 30 January 1992.   COMPLAINT        The applicant alleges a violation of Article 6 para. 1 of the Convention.   He considers that the proceedings, which began in 1982, lasted an unreasonable time within the meaning of Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 15 January 1992 and registered on 17 June 1992.        On 1 December 1993 the Commission decided to declare the application partly inadmissible and to communicate the remainder to the respondent Government for observations on its admissibility and merits.        The Government's written observations were submitted on 31 March 1994, after an extension of the time-limit.   The applicant replied on 8 June 1994.   THE LAW        The applicant alleges that the length of the proceedings exceeded the "reasonable time" prescribed by Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission notes that the proceedings against the applicant were opened in 1982.   The applicant's representative received the judgment of the Supreme Court on 30 January 1992.        The parties are in agreement that the proceedings began in September 1982, and that they ended with the Supreme Court's judgment of 17 October 1991, which was served on the applicant's representative on 30 January 1992.   The applicant considers that the period exceeded the "reasonable time" requirement of Article 6 (Art. 6) of the Convention.   The Government consider that there were no standstill or avoidable delays in the proceedings, and point out that the proceedings were particularly complex in that there was an extensive network relationships which had to be investigated in the course of the economic offences alleged, with 110 private parties, 180 witnesses before the investigating judge and a file running to 24 volumes plus annexes at the date of the indictment (including one expert's report which had a total of 2,432 pages).   They also note that the applicant had an interest in procrastinating as much as possible, and cite as one example the applicant's absence from the beginning of the trial.        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 REMAINDER OF 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)