CASE OF HENGL v. AUSTRIA



         In the case of Hengl v. Austria (1),

         The Screening Panel of the European Court of Human Rights,

constituted in accordance with Article 48 para. 2 (art. 48-2) of the

Convention for the Protection of Human Rights and Fundamental Freedoms

("the Convention") and Rule 26 of Rules of Court B (2),

_______________

Notes by the Registrar

1.  The case is numbered 5/1997/789/990.  The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number).  The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2.  Rules of Court B, which came into force on 2 October 1994, apply

to all cases concerning the States bound by Protocol No. 9 (P9).

________________

         Sitting in private at Strasbourg on 20 March 1997, and

composed of the following judges:

         Mr C. Russo, Chairman,

         Mr F. Matscher,

         Mr A. Spielmann,

and also of Mr H. Petzold, Registrar,

         Having regard to the application against the

Republic of Austria dated 7 January 1997 lodged with the Court by an

Austrian national, Mr Franz Hengl, on 16 January 1997;

         Whereas Austria has recognised the compulsory jurisdiction of

the Court (Article 46 of the Convention (art. 46)) and ratified

Protocol No. 9 to the Convention (P9), Article 5 (P9-5) of which amends

Article 48 of the Convention (art. 48) so as to enable a person,

non-governmental organisation or group of individuals having lodged a

complaint with the European Commission of Human Rights

("the Commission") to refer the case to the Court;

         Noting that the present case has not been referred to the

Court by either the Government of the respondent State or by the

Commission under Article 48 para. 1 (a) or (d) of the Convention

(art. 48-1-a, art. 48-1-d);

         Having regard to the Commission's report of 4 September 1996

on the application (no. 20178/92) lodged with the Commission by

Mr Hengl on 15 January 1992;

         Noting that the report was transmitted to the

Committee of Ministers of the Council of Europe on 9 October 1996, in

accordance with Article 31 para. 2 of the Convention (art. 31-2);

         Whereas the applicant complained (i) of the length of

criminal proceedings which had been brought against him before the

Austrian courts, (ii) of an interference with due process, in that the

Vienna Regional Court refused to allow him to be represented by the

lawyer he had freely chosen, and (iii) of the fact that the president

of the Regional Court had unjustly ordered his detention on remand, and

alleged breaches of Article 6 paras. 1 (art. 6-1) (right to a

fair trial within a reasonable time), 3 (b) (art. 6-3-b) (right to have

adequate time and facilities for the preparation of his defence) and

3 (c) (art. 6-3-c) (right to legal assistance of his own choosing);

         Whereas the applicant did not raise any complaint about the

fairness of his detention on remand in his application to the

Commission, which, on 1 December 1993 and 29 November 1995, declared

admissible only his complaint concerning the length of the proceedings

(Article 6 para. 1 (art. 6-1)) and declared the remainder of the

application inadmissible;

         Whereas the applicant, in specifying the object of his

application, as required by Rule 34 para. 1 (a) of Rules of Court B,

stated that he sought a decision by the Court holding that there had

been breaches of Article 6 paras. 1, 3 (b) and (c) of the Convention

(art. 6-1, art. 6-3-b, art. 6-3-c) and awarding him just satisfaction

under Article 50 (art. 50);

         Having regard to Articles 32 para. 1, 47 and 48 of the

Convention (art. 32-1, art. 47, art. 48) and Rule 34 paras. 1 (a), 3

and 4 of Rules of Court B,

1.       Observes that, pursuant to Article 32 para. 1 of the

         Convention (art. 32-1), for the Court to have jurisdiction to

         deal with an application the case must be referred to it

         within a period of three months from the date of transmission

         of the Commission's report to the Committee of Ministers,

         failing which it falls to the Committee of Ministers to

         decide whether there has been a violation of the Convention;

2.       Considers that in this case that provision (art. 32-1) was

         complied with, since the Commission's report was transmitted

         to the Committee of Ministers on 9 October 1996 and the

         application sent to the Court on 7 January 1997, that is

         before expiry of the three-month period, as evidenced by the

         postmark;

3.       Finds that

         (a)  the case raises no serious question affecting the

              interpretation or application of the Convention, as the

              Court has already established case-law on the

              "reasonable time" requirement in Article 6 para. 1 of

              the Convention (art. 6-1), while consideration of the

              other complaints lies outside the Court's jurisdiction,

              either because the Commission has declared them

              inadmissible or because the applicant raised them for

              the first time before the Court; and

         (b)  the case does not, for any other reason, warrant

              consideration by the Court as, in the event of a finding

              that there has been a breach of the Convention, the

              Committee of Ministers can award the applicant just

              satisfaction, having regard to any proposals made by the

              Commission;

4.       Decides, therefore, unanimously, that the case will not be

         considered by the Court.

         Done in English and in French, and notified in writing on

11 April 1997 pursuant to Rule 34 para. 4 of Rules of Court B.

Signed: Carlo RUSSO

        Chairman

Signed: Herbert PETZOLD

        Registrar

 

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