CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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. 30546/96                       by Hans-Peter LÖFFLER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs. J. LIDDY, President            MM.   M.P. PELLONPÄÄ                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS                 L. LOUCAIDES                 B. MARXER                 B. CONFORTI                 N. BRATZA                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL            Mrs. M. HION            Mr.   R. NICOLINI              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 12 January 1996 by Hans-Peter LÖFFLER against Austria and registered on 22 March 1996 under file No. 30546/96;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      18 November 1996 and the observations in reply submitted by the      applicant on 9 January 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen, born in 1944 and residing in Linz.   In the proceedings before the Commission he is represented by Mr. R. Gabl, a lawyer practising in Linz.        The facts of the case, as they have been submitted by the parties, may be summarised as follows.        On 11 April 1986 preliminary investigations on the suspicion of murder were instituted against the applicant.        On 31 March 1987 a Court of Assizes (Geschworenengericht) at the Linz Regional Court (Landesgericht) convicted the applicant of murder and sentenced him to eighteen years' imprisonment.        On 15 September 1987 the Supreme Court (Oberster Gerichtshof) dismissed the applicant's plea of nullity and appeal against the sentence.        On 6 September 1990 the applicant requested the reopening of the criminal proceedings against him.        On 11 December 1991 the Linz Regional Court dismissed the applicant's request.        On 15 June 1992 the Linz Court of Appeal (Oberlandesgericht) granted the applicant's appeal and reopened the criminal proceedings against him.   At the same time the applicant was released.        On 23 August 1993 the Linz Public Prosecutor's Office filed a bill of indictment charging the applicant with murder.        On 7 October 1993 the Linz Court of Appeal granted the applicant's objections against the bill of indictment.        On 30 May 1994 the Public Prosecutor's Office filed a new bill of indictment against the applicant.        On 9 September 1994 the Court of Appeal dismissed the applicant's objections against the bill of indictment.        On 6 February 1995 the Supreme Court dismissed the request by the Linz Regional Court to transfer jurisdiction in the case to a court in Vienna.        On 3 April 1995 the applicant filed a request under Section 91 of the Courts Organisation Act (Gerichtsorganisationsgesetz) with the Linz Court of Appeal.   He complained about the inactivity of the Regional Court and requested the Court of Appeal to order the Regional Court to fix a date for the trial.        On 24 May 1995 the Court of Appeal refused the above request. The Court of Appeal found that the Regional Court had to wait for further expert opinions concerning a DNA test of hair and skin parts which had been found on the victim and his clothes.        On   30 October 1995 the DNA test results were transmitted to the court.        On 12 February 1996 the Presiding Judge of the Court of Assizes at the Regional Court fixed the date of the applicant's trial for 19 August 1996.        The applicant's trial commenced on 19 August 1996 and finished on 29 August 1996.   On 29 August 1996 the Court of Assizes acquitted the applicant.     COMPLAINTS        The applicant complains under Article 6 of the Convention about the length of the reopened criminal proceedings against him.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 12 January 1996 and registered on 22 March 1996.        On 4 September 1996 the Commission decided to communicate the application.        The Government's written observations were submitted on 18 November 1996.   The applicant replied on 9 January 1997.     THE LAW        The applicant complains under Article 6 (Art. 6) of the Convention about the length of the reopened criminal proceedings against him.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a ... hearing within a reasonable      time ..."        The Government submit that criminal proceedings against the applicant have been rather complex.    After the re-opening had been granted it took some time until the former main incriminating witness could be traced, as she had meanwhile moved to the United States. Furthermore, in order to clarify the case complicated reports by scientific experts had to be obtained.   Having regard to these elements the proceedings were conducted within a reasonable time.        This is disputed by the applicant.   He submits that the proceedings have been conducted in a rather slow manner.   After the re- opening had been granted, no extensive investigations had been necessary in order to trace the former incriminating witness, as can be seen from the fact that already in March 1993 she had given evidence before the Investigating Judge.   Nevertheless the proceedings did not progress.   After the bill of indictment had become final on 9 September 1994, it took some further two years before the trial started.   This could not be explained by the necessity to obtain further expert opinions.   On the one hand the expert report could have been requested much earlier.   On the other hand the expert had completed his report in August 1995, while the trial only started in August 1996.        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 competent authorities), and having regard to all the information in its possession, that an examination of the merits of the application is required.          For these reasons, the Commission, unanimously,          DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.       M.F. BUQUICCHIO                                 J. LIDDY      Secretary                                    President to the First Chamber                         of the First Chamber