CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1998

.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. 32869/96                       by Dietrich RÖSSLHUBER                       against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 2 July 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            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 10 May 1996 by Dietrich RÖSSLBAUER against Austria and registered on 4 September 1996 under file No. 32869/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows : THE FACTS        The applicant, born in 1940, is an Austrian national residing in Salzburg. Before the Commission, the applicant is represented by Mr Werner, a lawyer practising in Vienna.        The facts, as submitted by the applicant, may be summarised as follows.        On 31 August 1989 the Salzburg Regional Court (Landesgericht Salzburg) started preliminary criminal investigations against the applicant and thirty other suspects on the suspicion of fraud and breach of trust in the context of investments in a real estate fund.        On 31 January 1990 the Judges' Chamber (Ratskammer) at the Salzburg Regional Court dismissed the applicant's appeal against the opening of preliminary proceedings. On 14 March 1990 the Linz Court of Appeal (Oberlandesgericht Linz) rejected the applicant's further appeal.        On 4 August 1995 the Salzburg Public Prosecutor's Office (Staatsanwaltschaft) preferred the indictment (Anklageschrift) of 441 pages against the applicant and eight of his co-accused.        On 7 November 1995 the Linz Court of Appeal dismissed the objection raised by the applicant against the indictment.         On 25 March 1996 the trial was scheduled for 16 September 1996. Thereupon, the applicant requested the postponement of the trial until after 1 January 1999, in order to allow him to prepare his defence, given the large volume of documents in the file. On 31 July 1996 the Salzburg Regional Court dismissed the applicant's motion.        Since 16 September 1996 over 150 hearings have taken place before the Court.        On 9 January 1998 the applicant was hospitalized to cure an intestinal haemorrhage, and one of the hearings was conducted in a meeting-room of the hospital.        The proceedings are still pending.     COMPLAINTS   1.    The applicant complains under Article 6 para. 1 of the Convention about the criminal proceedings against him. He submits that the proceedings already lasted over eight years and that no first instance judgment has yet been given.   2.    Furthermore, he complains under Article 6 that in the proceedings concerning his indictment, no oral hearing was granted to him and that he had to prepare his objection against the indictment within only two weeks. Moreover, the applicant complains under Article 6 para. 3 (b) that he did not have sufficient time to prepare his defence and that he had only been informed of the accusations raised against him when the indictment was preferred. He finally claims that, as the preferment of the indictment occurred before the formal closing of the preliminary proceedings, two separate proceedings were presently conducted against him.   THE LAW   1.    The applicant complains about the length of the criminal proceedings against him. He invokes Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this complaint to the Government.   2.    The applicant further complains under Article 6 (Art. 6) of the Convention about the alleged unfairness of the proceedings concerned, in particular that he did not have an oral hearing in the proceedings to challenge the indictment and did not have sufficient time to prepare his defence.        The Commission recalls that the question of whether a trial conforms to the standards laid down in Article 6 (Art. 6) must be decided on the basis of an evaluation of the trial in its entirety (cf. No. 11058/84, Dec. 13.5.86, D.R. 47, p. 230 with further references). It is true that it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (cf. Nos 8603/79, 8722/79, 8723/79 and 8729/79 joined, Dec. 18.12.80, D.R. 22, p. 216).   However, the Commission finds that the applicant failed to show any such specific circumstances. In particular, the Commission considers that the proceedings concerning the applicant's appeal against the opening of the trial proceedings constituted a preliminary issue which can only be examined in the context of the proceedings as a whole once they have terminated. Accordingly, his complaints relating to the alleged unfairness of the criminal proceedings against him which are still pending before the Salzburg Regional Court are premature.        It follows that the remainder of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.      For these reasons, the Commission        DECIDES TO ADJOURN the examination of the applicant's      complaint that the criminal proceedings against him lasted      unreasonably long and        unanimously,      DECLARES INADMISSIBLE the remainder of the application.        M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                                  President    to the First Chamber                       of the First Chamber