CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 1996

.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. 23019/93                       by E. L.                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 26 June 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  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 5 May 1993 by Mr. E. L. against Austria and registered on 19 November 1993 under file No. 23019/93;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the Commission's decision of 17 May 1995 to communicate the application as regards the applicant's complaint concerning the length of the criminal proceedings against him and to declare the applicant's other complaints inadmissible;        Having regard to the observations submitted by the respondent Government on 31 August 1995 and the observations in reply submitted by the applicant on 15 October 1995 and the applicant's further submissions of 8 November, 12 November, 16 November and 20 December 1995, 25 January, 9 February, 19 February, 21 February, 24 March, 17 April and 6 May 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1928, is an Austrian national residing in Vienna.   A.    Particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        On 6 September 1988 the Vienna Regional Criminal Court (Landes- gericht für Strafsachen) opened preliminary investigations (Vorunter- suchung) against the applicant. He was suspected of National Socialist activities (Betätigung im nationalsozialistischen Sinne) within the meaning of S. 3g of the National Socialism Prohibition Act (Verbots- gesetz) in that he circulated documents denying the mass killings in numerous concentration camps of the Third Reich. The proceedings were joined to proceedings against a certain G.H. relating to similar charges.        Also on 6 September 1988, the investigating judge (Untersuchungs- richter) at the Regional Court ordered a search of the applicant's premises, which was carried out on 15 September 1988 by officers of the Vienna Federal Police Authority (Bundespolizeidirektion). A number of documents were seized. On 14 October 1988 the Review Chamber (Ratskammer) at the Vienna Regional Criminal Court dismissed the applicant's complaint relating to the search of his premises.        Also on 6 September 1988 the investigating judge sent letters rogatory to the embassy of the Soviet Union.        On 9 September 1988 the investigating judge sent letters rogatory to the competent court in Canada where the original of the document at issue was allegedly deposited.        On 23 September 1988 letters rogatory were sent to the embassy of the United States of America.        On 7 November 1988 a witness was heard by way of legal assistance by a court in Salzburg.        On 9 January 1989 letters rogatory were sent to Switzerland.        On 9 February 1989 the preliminary investigations against the applicant were extended to include charges of forging documents (Urkundenfälschung) and of having surreptitiously obtained an office (Erschleichung eines Amtes).        On 7 March 1989 the Vienna Regional Criminal Court received the minutes of the hearing of a witness from Switzerland.        On 16 March 1989 the investigating judge heard the applicant as a suspect on the charges against him.        On 30 March 1989 the applicant complained about the opening of the preliminary investigations against him. Subsequently, he also complained about the extension of these investigations. On 15 November 1989 the Review Chamber at the Regional Court dismissed his complaints.        On 2 August 1989 the Vienna Regional Criminal Court received the minutes of a hearing of a witness by a Canadian court.        On 29 June 1990 the proceedings against the applicant and G.H., after they had apparently been joined to a further set of proceedings against the latter, where separated again from these proceedings.        On 29 August 1990 the file was sent to the Vienna Regional Civil Court in the context of related civil proceedings.        On 25 June 1991 the Vienna Regional Civil Court, following several requests by the investigating judge, returned the file.        On 27 August 1991 further letters rogatory were sent to Canada.        On 10 September 1991 the Vienna Regional Criminal Court ordered a psychiatric expert to file an opinion on the applicant's criminal responsibility. On 27 November 1991 the Review Chamber at the Vienna Regional Criminal Court dismissed the applicant's complaint. Later, the said Court also ordered a second expert to file an opinion.        On 3 January 1992 the applicant, upon an order issued by the investigating judge, was brought before the psychiatric experts. However, he refused to be examined. Thereupon, both experts stated that it was impossible to file an opinion.        On 21 January 1992 the President of the Vienna Regional Criminal Court dismissed the applicant's motion, by which he had challenged the investigating judge, the public prosecutor and the members of the Review Chamber of the said Court for bias. This decision was confirmed on 13 August 1992 by the Vienna Court of Appeal (Oberlandesgericht).        On 14 April 1992 the Vienna Court of Appeal dismissed the applicant's further complaint against the opening of preliminary investigations against him and his hierarchical complaint (Aufsichtsbeschwerde) relating inter alia to his being brought before the psychiatric experts.        On 3 June 1992 the investigating judge ordered that the documents which had been seized in the course of the search of the applicant's premises be returned to him.        On 11 May 1993 and on 18 August 1993 the Supreme Court (Oberster Gerichtshof) rejected two appeals brought by the applicant as being inadmissible. The Court noted that the applicant had relied on the Fundamental Rights Complaints Act (Grundrechtsbeschwerde-Gesetz). However, this Act only related to complaints about a deprivation of liberty. The applicant had not made any submissions in this respect.        On 18 May 1993 the investigating judge again heard the applicant as a suspect. In the course of the hearing the applicant brought a motion challenging the judge for bias, which was, on 22 May 1992, dismissed by the President of the Vienna Regional Criminal Court.        On 22 May 1993 the applicant challenged the entire Vienna Regional Criminal Court for bias. Thereupon, the file was sent to the Vienna Court of Appeal which, on 20 August 1993, dismissed the applicant's motion.            On 9 September 1993 the file was sent to the Public Prosecutor for the decision whether the preliminary investigations be discontinued or the indictment be preferred.        On 9 May 1994 the Public Prosecutor's Office preferred the indictment against the applicant.   He was charged with National Socialist activities within the meaning of S. 3g of the National Socialism Prohibition Act for having circulated documents denying the mass killings in numerous concentration camps of the Third Reich. The investigations concerning charges of forging documents were discontinued.        On 28 September 1994 the Vienna Court of Appeal dismissed the applicant's objection against the indictment.        On 29 November 1994 the proceedings against the applicant were separated from the proceedings against G.H.        On 5 December 1994 the file was sent to the presiding trial judge.        On 19 June 1995 the applicant brought a motion to challenge the presiding judge for bias.        The proceedings are still pending.   B.    Relevant domestic law        S. 3g of the National Socialist Prohibition Act (Verbotsgesetz) reads as follows:        "Whoever performs activities inspired by National Socialist ideas in a manner not coming within the scope of Section 3a to 3f shall be liable to punishment by a prison sentence between five and ten years, and if the offender or his activity is particularly dangerous, by a prison sentence of up to twenty years, unless the act is punishable under a different provision stipulating a more serious sanction."        An amendment which entered into force on 20 March 1992, changed the range of punishment from five to ten years to one to ten years.   COMPLAINTS        The applicant's remaining complaint concerns the length of the criminal proceedings against him.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 5 May 1993 and registered on 19 May 1993.        On 17 May 1995 the Commission decided to communicate the applicant's complaint concerning the length of the criminal proceedings against him to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure. The Commission declared the remainder of the application inadmissible.        The Government's written observations were submitted on 31 August 1995. The applicant replied on 15 October 1995. He made further submissions on 8 November, 12 November, 16 November and 20 December 1995, 25 January, 9 February, 19 February, 21 February, 24 March, 17 April and 6 May 1996.   THE LAW        The applicant complains that the criminal proceedings against him lasted unreasonably long.        The Commission will examine this complaint under Article 6 para. 1 (Art. 6-1) of the Convention which, so far as relevant, reads as follows:        "In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within reasonable time ..."        The Government, referring to the case-law of the Convention organs, submit that the investigations in the present case where difficult, as they necessitated enquiries to be made in and requests for legal assistance to be addressed to the United States, the former USSR, Switzerland and Canada. Moreover, the Government argue that much of the length of the proceedings was due to the applicant's conduct. In particular, he submitted about 12,500 pages of requests for the taking of evidence and appealed against almost every decision of the court. Thus, the file had to be sent constantly to the appellate courts. As the size of the file, which has at present thirty-five volumes, rendered it impracticable to make a copy, it was impossible to conduct the preliminary investigations speedily. Further delays were caused by the applicant's various motions to disqualify judges.        The applicant contests the Government's view. He argues that the duration of the criminal proceedings against him is in any case unreasonable. He submits that hardly any investigations were carried out in Austria and only one witness was heard. Thus, the volume of the file was not a result of the activities of the Austrian authorities, but was due to the fact that he submitted about 300 expert opinions in his defense. Further, he argues that the Vienna Regional Criminal Court in other cases with very voluminous files, was able to conduct the investigations speedily.        The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time" (the complexity of the case, the applicant's conduct and that of the 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 ADMISSIBLE the remainder of the application,      without prejudging the merits of the case.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)