CEDH · CASELAW;REPORTS;ENG — 4 septembre 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 }                          EUROPEAN COMMISSION OF HUMAN RIGHTS                                  FIRST CHAMBER                              Application No. 20178/92                                     Franz Hengl                                       against                                       Austria                              REPORT OF THE COMMISSION                          (adopted on 4 September 1996)                                  TABLE OF CONTENTS                                                                         Page   I.     INTRODUCTION       (paras. 1-9). . . . . . . . . . . . . . . . . . . . . . . . . . . .1     II.    ESTABLISHMENT OF THE FACTS       (paras. 10-17). . . . . . . . . . . . . . . . . . . . . . . . . . .3     III.   OPINION OF THE COMMISSION       (paras. 18-27). . . . . . . . . . . . . . . . . . . . . . . . . . .5         A.     Complaint declared admissible             (para. 18). . . . . . . . . . . . . . . . . . . . . . . . . .5         B.     Point at issue             (para. 19). . . . . . . . . . . . . . . . . . . . . . . . . .5         C.     As regards Article 6 para. 1 of the Convention             (paras. 20-26). . . . . . . . . . . . . . . . . . . . . . . .5               CONCLUSION             (para. 27). . . . . . . . . . . . . . . . . . . . . . . . . .6     APPENDIX I    : PARTIAL DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . .7   APPENDIX II   : FINAL DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . 12   I.     INTRODUCTION   1.     The present Report concerns Application No. 20178/92 introduced on 15 January 1992 against Austria and registered on 17 June 1992.   2.     The applicant is an Austrian national born in 1940 and resident in Vienna.   3.     The applicant is represented before the Commission by Mr. W. Blaschitz, a lawyer practising in Vienna.   4.     The respondent Government, Austria, are represented by Mr. F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   5.     On 1 December 1993 the application was declared partially admissible, and the remainder concerning the length of the proceedings was communicated to the Government.   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 29 November 1995.   The decision on admissibility is appended to this Report.   6.     On 29 April 1996 the Secretary to the Commission met representatives of the Government and the applicant in Vienna and attempted to reach a settlement of the case.   7.     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 4 September 1996 in accordance with Article 31 para. 1 of the Convention, the following members being present:         Mrs.   J. LIDDY, President       MM.    M.P. PELLONPÄÄ             E. BUSUTTIL             A. WEITZEL             C.L. ROZAKIS             G.B. REFFI             B. CONFORTI             N. BRATZA             I. BÉKÉS             G. RESS             A. PERENIC             C. BÎRSAN             K. HERNDL   8.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the Republic of Austria.     9.     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   10.    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.   11.    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.   12.    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 he 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.   13.    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.   14.    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.   15.    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.   16.    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 charges in respect of which the question of sentence had been remitted to the Regional Court were dropped on 9 January 1992.   17.    The judgment of the Supreme Court was received by the applicant's representative on 30 January 1992.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   18.    The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.   B.     Point at issue   19.    The only point at issue is whether the length of the proceedings complained of 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   20.    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 ..."   21.    The proceedings in question concerned criminal charges against the applicant.   The proceedings accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   22.    These proceedings, which began in September 1982 and ended   with the Supreme Court's judgment of 17 October 1991 which was served on the applicant's representative on 30 January 1992, lasted over nine years.   23.    The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case (see Eur. Court HR, Ficara v. Italy judgment of 19 February 1991, Series A no. 196-A, p. 9, para. 17).   24.    According to the Government, the length of the period in question was due to the complexity of the case in that there was an extensive network of 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. They also point to the applicant's conduct, in particular in connection with his interest in procrastinating as much as possible, and cited as one example the applicant's absence from the beginning of the trial.   25.    The Commission accepts that the case involved a certain further complexity, but the legal issues were clear.   Moreover, whilst the applicant must bear a certain responsibility for some of the length of the proceedings, the overall period of over nine years has not been convincingly explained.   26.    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   27.    The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.       M.F. BUQUICCHIO                                      J. LIDDY      Secretary                                         President to the First Chamber                             of the First Chamber